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[H.A.S.C. No. 107–31]



FOR FISCAL YEAR 2003—H.R. 4546






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MARCH 7, 8, 13, and 14, 2002




JOEL HEFLEY, Colorado, Chairman
CURT WELDON, Pennsylvania
WALTER B. JONES, North Carolina
BOB RILEY, Alabama
J.C. WATTS, JR., Oklahoma
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ROB SIMMONS, Connecticut

SOLOMON P. ORTIZ, Texas, Ranking Member
LANE EVANS, Illinois
JAMES H. MALONEY, Connecticut
MIKE MCINTYRE, North Carolina
ROBERT A. BRADY, Pennsylvania
BARON P. HILL, Indiana
SUSAN A. DAVIS, California
RICK LARSEN, Washington

Virginia H. Johnson, Counsel
Diane W. Bowman, Staff Assistant



    Thursday, March 14, 2002, Fiscal Year 2003 National Defense Authorization Act—Environmental and Encroachment Issues
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    Thursday, March 14, 2002



    Hefley, Hon. Joel, a Representative from Colorado, Chairman, Military Readiness Subcommittee


    Dubois, Hon. Raymond, Jr., Deputy Under Secretary of Defense (Installations and Environment)
    Fiori, Hon. Mario, Assistant Secretary of the Army (Installations and Environment)
    Gibbs, Hon. Nelson, Assistant Secretary of the Air Force (Installations, Environment and Logistics)
    Hogarth, William, Assistant Administrator for Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration
    Johnson, Hansford T.
    Mason, Craig, Assistant Secretary for Fish, Wildlife and Parks, Department of the Interior
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    Mayberry, Hon. Paul W., Deputy Under Secrerary of Defense (Readiness)
    Shimberg, Steven, Deputy Associate Administrator for Enforcement and Compliance Assurance, U.S. Environmental Agency


    Dubois, Hon. Raymond, Jr.
    Fiori, Hon. Mario
    Gibbs, Hon. Nelson
    Hogarth, William
    Johnson, Hansford T.
    Mason, Craig
    Mayberry, Hon. Paul W.
    Shimberg, Steven

[There were no Documents submitted for the Record.]

[Questions and Answers submitted for the Record are pending.]


House of Representatives,
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Committee on Armed Services,
Military Readiness Subcommittee,
Washington, DC, Thursday, March 14, 2002.

    The subcommittee met, pursuant to notice, at 2:04 p.m., in room 2118, Rayburn House Office Building, Hon. Joel Hefley (chairman of the subcommittee) presiding.


    Mr. HEFLEY. [Presiding.] The committee will come to order.

    Again, and I apologize to Mr. Johnson who was here yesterday and heard this spiel, but we are still—we are having trouble getting—well, I guess Mr. Fiori here, too, you were here too. You two can be excused for a few moments, if you would like, while I run through this again. But it really is a serious matter.

    We are not getting your statements by our deadline. And we need to get your statements by then. We usually ask you to give us your statements 2 days before the hearing, and we asked you to do that 40 days ago or so. And what we are hearing is that you get your statements into the Office of Management and Budget (OMB), and then they hang on to your statements, and you do not get them back, and you cannot get them to us and so on.

    Well, I do not care who is responsible for it. But for us to conduct the hearings properly, and particularly when we do not have many Members here, they need your statements in advance. So I will say that first.
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    Then, second, I apologize for us not having many Members here because this is a very important hearing. But as you well know, we finished the last vote about 12:30, and when we finish the last vote around here, people get on airplanes and they fly off.

    But your statements will be put in the record. We are going to follow the 5-minute rule. And if you would summarize your statements, they will be put in the record in their entirety.

    And this is very important. It is an issue that we need to deal with, we do not have the answers to, we need you to help us have the answers to that. So we will look forward to your testimony.

    Today the Subcommittee on Military Readiness will hear testimony from the Department of Defense and Federal environmental agencies to address their concerns regarding the impact on military readiness and national security caused by compliance with various Federal environmental laws.

    The committee has been receiving a growing number of reports from the Department of Defense and the military services that their mandatory compliance with Federal environmental laws is having an increasingly adverse effect on military readiness, which over time will adversely impact national security.

    There have been some erroneous reports in the media that our objective today is to propose sweeping exemptions for the military that would have an adverse impact on the environment. That is not true. We are not proposing anything today. We are here to listen and to learn.
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    It is not the intention of this subcommittee to propose or support any legislation that would harm the environment. All of us treasure our environment. We have asked the Department of Defense, the four military services, and some of the Federal regulatory agencies to provide their view on this important issue.

    And the reality is, we have two positive, competing values here—and sometimes they are competing values. And that is training our military to go out and win wars and also protecting the environment. We have to figure some way to balance that out.

    We have received requests from a few outside groups, including the National Association of Attorneys General and the Environmental Council of the States, to consider the reasonable views of local and state governments on this important issue.

    Time limitations today make it challenging to even hear from all of our Federal witnesses, so we are unable to include representatives from these groups on our panels today. However, as always, we welcome the views of these groups and other interested groups on any legislation that we may consider.

    It is essential that all Federal agencies, including the Department of Defense, be required to comply with numerous Federal environmental laws, including the Endangered Species Act, the Marine Mammal Protection Act, the Clean Water Act, the Clean Air Act, the Resources Conservation and Recovery Act, and the Noise Control Act, to name a few.

    However, due to the unique training and operational missions, the department often faces unique challenges in balancing its obligation to comply with these environmental laws and sustaining military readiness.
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    The ever-increasing limitations and restrictions on lands and waters which are currently set aside for training exercises, as well as restrictions on the times and conditions under which the military training exercise can be conducted, are some examples of the environmental encroachment.

    Compliance with environmental laws also necessitates the use of personnel and funds which would otherwise be used to support the training, operations and maintenance requirements of the department. The department and the military services spend approximately $4 billion annually on environmental programs.

    This subcommittee conducted an open hearing last year to consider the constraints and challenges facing military test and training ranges. During the hearing, the department highlighted numerous examples throughout the services where its compliance with environmental laws is severely impeding its ability to adequately prepare for combat and national defense.

    The purpose of today's hearing is not to give the department a forum for merely repeating the identical, similar examples it highlighted last year. The primary objectives today are to focus on why the department has not elected to avail itself of exemption remedies currently contained in Federal law, as well as to hear what suggestions the department and environmental enforcement agencies have for legislative relief that might address the competing concerns.

    Each of the services has numerous examples where its compliance with Federal environmental laws leads to dramatic impediments on readiness.
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    During the past several months, my staff and I have personally met with representatives from the Marine Corps Base Camp Pendleton, Goldwater Range at Luke Air Force Base, the Army Training and Doctrine Command, the Navy Special Warfare Command in San Diego, the Naval Air Station Oceana, and Naval Air Station Jacksonville, just to name a few, each of whom have described the challenges they face in adequately preparing their men and women in uniform for combat due to environmental restrictions.

    For example, the Navy spends approximately $2.4 million each year and is forced to close its shore bombardment range off the coast—the California coast at San Clemente Island—four days each week during the breeding season due to the presence of a bird called the loggerhead shrike, an endangered species which inhabits the island.

    When the shrike was initially listed as an endangered species on San Clemente Island, the population was estimated to include only 13 birds. Today, the population has grown to approximately 160 birds, of which approximately 70 birds are in the wild. The rest are housed in the captive breeding programs on San Clemente Island or at the San Diego Zoo, all at the expense of the Navy.

    This environmental success has necessitated reducing one of the two firing ranges in size by 90 percent and the other by 50 percent, during the fire season.

    Although the shrike population has increased dramatically, our current laws establish no goal at which restrictions on the Navy's activities will be relaxed. That is, we have evidence now that the shrike population has increased by more than tenfold. How many shrikes must be reintroduced into the wild and maintained on San Clemente Island before we can say that the Navy can once again devote its complete attention and dollars to its primary mission of preparing our military forces to ensure national security?
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    Similarly, at Fort Hood, Texas, one of the Army's premier training installations of approximately 200,000 training acres, 66,000 acres, or 33 percent of the training land, is committed to protect the habitat of two endangered species.

    The presence of cultural artifacts restricts an additional 11 percent of Fort Hood's training area. Some 228,000 acres have restrictions on digging, affecting 64 percent of the training area. Combined with additional restrictions of smoke and noise, a total of 84 percent of Fort Hood is currently subject to some kind of limitation.

    I visited Camp Pendleton, California, last month where the environmental team there briefed me on the challenges the Marine Corps face in conducting the required training exercises due to the various environmental restrictions on its available training land.

    We have a map over here of Camp Pendleton which illustrates the unique challenges there.

    The first image shows the land owned by Camp Pendleton. That is—I think it is 128,000 acres. It is a lot of land. You think you could train a lot of Marines there. So you see the beach—they have 17 miles of beach—and then you see the land. Well, the first image shows this land.

    The next overlay—let's have an overlay—demonstrates land that is restricted due to the presence of tidal estuaries. Okay? So he is pointing out the land that is restricted to the estuaries, which support critical habitat for the tidewater goby, an endangered fish.
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    The next overlay illustrates land that is restricted due to the presence of an endangered species called the Coastal California Gnat Catcher. The next overlay—now, you see the gnat catcher along with the estuary thing.

    The next overlay demonstrates land that is restricted due to the presence of rare plants. Okay?

    The next overlay demonstrates land that is restricted due to the presence of streams and wet areas, which serve as movement corridors for wildlife, including several endangered species. You got those.

    And then, finally, the last overlay demonstrates areas where the vernal pools or mud puddles—and these are mud puddles, little depressions that, when it rains—it does not rain often, but when it does rain, they get water in them, get mud in them. And these vernal pools are inhabited by two species of a microscopic endangered species called the fairy shrimp.

    What remains is an impossibly truncated mishmash of the land available for combat training. Do we have the other slide which shows this? And let's get it all together then where you can—Okay. You can see on this the various areas where you cannot train. The dark areas you can still train; there are severe limitations on training in that 128,000 acres.

    I thought this was very dramatic. I had not seen it quite this way before. And so I wanted to share it with you, because I thought it was very dramatic.
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    In some instances, other Federal agencies charged with enforcement of Federal environmental laws have recognized the unique mission of the department and have sought to grant exemptions from compliance, only to find themselves targets of litigation from third parties.

    For example, in 1993 the Fish and Wildlife Service added to its list of threatened species the Coastal California gnat catcher, which is a small gray songbird that lives in southern California, including Camp Pendleton. This species of bird is particularly attracted to coastal sage which is found on approximately 50,000 of the 126,000 acres at Camp Pendleton.

    The Fish and Wildlife Service initially proposed to declare all 50,000 acres as critical habitat for the gnat catcher under the Endangered Species Act. After negotiations with the Marine Corps, the Fish and Wildlife Service agreed to limit the critical habitat designation to the 8,000 acres that were actually inhabited by the gnat catcher.

    Consequently, the Fish and Wildlife Service has been sued in Federal court by an environmental group and local developers for giving the Marine Corps a partial exclusion.

    The Endangered Species Act permits the Secretary of Defense to invoke an exemption from its coverage for any agency where the secretary finds that such exemption is necessary for reasons of national security. The secretary has never invoked this exemption in the context of the problem areas the department has highlighted at hearings last year. It is our understanding that the department does not even have a process in place for reviewing cases where an exemption should be considered.
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    Section 2014 of Title X, United States Code, similarly affords the Secretary of Defense, acting with the Chairman of the Joint Chiefs of Staff, authority to obtain a temporary, 5-day moratorium from the action of other Federal agencies pending notification to, and action from the President whenever an executive agency takes or proposes to take an action that affects training or any other readiness activity in a manner that would have a significant adverse effect on the military readiness of any of the armed forces.

    The secretary has never exercised this authority.

    In addition to hearing proposals from all these agencies today for the new legislation that they would like us to consider, we would like the department to explain why it has never exercised the exemption authorities that already exist in the current law.

    Again, let me repeat, as I said in the beginning, we are not trying to overturn or repeal the existing environmental laws. What we are trying to do is to find a balance between the need to protect national security and the environment.

    I would like to recognize now Mr. Underwood for any statement he would like to make.

    [Maps and charts can be found in the Appendix on page ?.]

    Mr. UNDERWOOD. Thank you, Mr. Chairman, and I join with you in welcoming all of our distinguished witnesses to the hearing this morning. This hearing provides an opportunity for us to obtain your views on encroachment, an issue that has become a major concern of the Congress and the Department of Defense.
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    It is an issue that has become a critical component in determining how we perceive our ability to provide realistic and relevant training to the force. It is also the subject of court decisions, as we know, and regulatory interpretations, with their intentional or unintentional adverse impact on military training. And it has often been the subject of jurisdictional disputes here in Congress.

    I also join with you, Mr. Chairman, in pointing out that testimonies need to be more timely presented. And I also would like to see us obtain the input of other stakeholders.

    Mr. Chairman, all persons present here today must understand that none of us are willing to place the security of this nation at a level of unacceptable risk because our military personnel were unable to conduct essential readiness training. It is inconceivable that any of us would be willing to send American fighting forces off to engage in close combat with an enemy ill-prepared. That has to be the basis for the exception authority in law that has been granted to the Secretary of Defense, an exemption that you have noted has not been used.

    We also acknowledge that there are other important national interests that Members accept and have passed laws in Congress for, to include preserving public safety, community welfare and culture, and the national heritage of this nation. They, too, deserve our attention.

    It is the tensions between and amongst those interests that is the basis for our activities and the hearing today.
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    Encroachment is a most complex issue. I have been informed by counsel that it is also a legal issue. It is frequently used to characterize issues associated with endangered species, noise abatement, clean water requirements, and competition for control of airspace and frequency spectrum. It also captures a number of issues associated with demands for increased restricted areas because of the testing or fielding of new weapons systems and munitions, large-scale unit experimentations, and different training techniques.

    Mr. Chairman, encroachment is an issue that we can ill-afford to ignore. But I urge caution in prescribing corrective legislation until we clearly have assessed all of the risks to include the risk of unintended consequences. I believe there will always be some tensions and stresses between military training activities and those citizens who are focused on the protection of the environment.

    I am not convinced at this time that we have reached an impasse between the citizenry of the Nation and the military that is charged to defend it. Continuous communications that permit the military to articulate its requirements and the community to communicate its concerns are essential.

    Because of the broad nature of the impact of encroachment, I believe that we must take a comprehensive and collaborative approach in addressing it. An effective solution must consider the inter-agency implications, since many elements of the government at multiple levels are involved.

    Mr. Chairman, no service element should be left to fend for itself in this venture. While it may be difficult to achieve, I see no reason not to consider the possibility of making protection of the environment truly a national issue, with the Administration funding it separate from the defense budget as we know it today.
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    Some inter-agency mechanism would be required that would involve both governmental and non-governmental agencies that would develop medication issues that will ensure that training realism and relativity is not sacrificed, while, at the same time, the services could continue to conduct as responsible stewards of our national resources and good neighbors.

    Thank you for your presence and your patience today, and I look forward to your testimony.

    Mr. HEFLEY. Thank you, Mr. Underwood.

    I would like to point out one other chart. And, Todd, I am going to make you an honorary member of the Armed Services Committee staff for a second.

    I want you to look at this chart which shows—the green shows the amount of land that these various agencies—Federal land that these various agencies control in the United States—no, I mean, the red, I believe, shows the amount of land, doesn't it?

    A STAFF MEMBER. Green, sir.

    Mr. HEFLEY. So, access of land. Okay, yes, that is right. The green shows the amount of land controlled by the Bureau of Land Management (BLM) and the Forest Service and so forth. Yes, I have got it up close here. And the red shows the amount of endangered species on that land.

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    So you see the Defense Department over at the left, and they have a very small percentage of the total land controlled by Federal agencies and the largest, by far, percentage of the endangered species.

    And part of the reason for that is the Camp Pendleton example, where you buildup around Camp Pendleton, in southern California, where it is very popular, you buildup around it, and so where is the open space? The open space happens to be the training range. And so you drive the endangered species on to that range. And I think that is pretty dramatic, too.

    I would like to call on the esteemed Chairman of the Natural Resources Committee, who is also an outstanding member of the Readiness subcommittee in our Armed Services Committee, to see if he has an opening statement he would like to make.

    Mr. HANSEN. Thank you, Mr. Chairman, I do. And I appreciate your interest in this very very critical problem. I look forward to work with you to start to solve some of these encroachment problems.

    Last week, we heard from the Vice Chiefs of Staff concerning how important realistic training is to combat success and the safety of our troops. I thought General Williams, the Vice Commandant of the Marine Corps, put it best. He said, ''Quality of life for Marines in combat is bringing all of your men home alive.''

    Realistic training is literally the difference between life and death in combat, and we owe it to young men and women who volunteer to defend our country nothing less than the best possible training before we send them into harm's way.
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    As General Keane said last week, quote, if you want to know how important realistic training is, just ask the soldiers jumping off those helicopters in Afghanistan, end of quote.

    We can never replicate the fear of combat. By replicating as closely as possible all the other conditions of terrain, environment, noise, confusion, stress, and danger of live ordnances, we can train our troops to focus on the mission at hand.

    Now, for those of you who may think encroachment is no big deal, let me tell you about a court decision that just was handed down yesterday. A Federal judge right here in Washington—which, incidentally, Mr. Chairman, is a dumb place to try it, if I may say so—


    —ruled that the Navy was in violation of the Migratory Bird Treaty Act for conducting training on a tiny uninhabitable island in the Mariana Islands, Farallon deMedinilla (FDM), without a permit to take, harm or kill migratory birds.

    This, despite the Navy completing two EIS's (Environmental Impact Statements) in full compliance with the Endangered Species Act, and an aggressive local mitigation plan.

    Now, this is interesting because this is the first time an 80-year-old law has ever been held to apply to the military. And it sets up a catch–22 for the Navy.
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    Other Federal agencies, like Fish and Wildlife, can obtain a permit to take migratory birds intentionally, for example, to clear away large flocks of Canadian geese from a golf course. But the law does not provide permits authorizing unintentional takes during training, i.e. bird strike, whatever it may be.

    So what do you do, get a permit for a bird strike when you are flying an airplane? If the Navy wanted to intentionally kill the birds, they could get a permit to do it. But because they do not want to kill the birds and go out of their way not to harm the birds, they cannot get a permit. Talk about a total mess. I have never seen anything like this.

    This is the type of common-sense balance that we need to address. Nobody here wants, or is asking for, blanket exemption from military activity. The word always comes down to balance. And if we do not reach it, this ruling could shut down all the training at FDN and any installation impacted by migratory birds. As one who is kicked around most of these installations, I can hardly think of one that does not have migratory birds.

    The commander of the 7th Fleet has stated that if training at FDM is curtailed, fleet-wide readiness would degrade to unacceptable levels within 6 months. This is just one example that I wanted to bring out, Mr. Chairman, on how important today's hearing is.

    And I really look forward to hearing from our witnesses. Thank you.

    Mr. HEFLEY. Thank you, Mr. Hansen.

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    Mr. Rodriguez, Ms. Davis, would either of you like an opening statement? Ms. Davis?

    Mrs. DAVIS OF CALIFORNIA. Thank you, Mr. Chairman and colleagues. I appreciate the time to address really briefly. And unfortunately, I am going to have to leave by 3 o'clock, so I appreciate this time.

    And I know that we have raised the issue of having all the stakeholders around the table. I think that is important. It is certainly important as we move to perhaps create new legislation; I would love to see people have that opportunity as we are doing that and as we are creating that legislation. It is always difficult after the fact. And I know that there are a good number of groups that would like to participate. And I appreciate the fact that we are starting down that course, and I want to be sure that they are able to add their comments, as well, early in the process.

    I know that many of you have heard me speak to the Navy and Marine Corps, in particular, and make a recommendation; and that is that I think that we have some wonderful examples of environmental stewardships in San Diego, in Camp Pendleton, out in San Clemente Island. And as a long-time member of the San Diego community, I really did not know that existed. I think it has been a well-kept secret, and I would urge you to be certain to share that externally, to tell those stories.

    It is easy for people in the community, when they are not aware of what is being done, to feel as if some of the environmental concerns are just being taken very lightly. And I think that is a general impression of the community.
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    So I urge you to shift that—maybe it is propaganda, whatever it may be, but to alert the community to what is being done and to really welcome the comments of the community in areas where people feel they have, perhaps, been excluded from that discussion in the past.

    I know that we hear the mantra often that we have to—our forces have to train like they are going to fight. And we find now in Afghanistan that people are learning to fight in very different ways than we ever anticipated. And clearly, that is a point that we have to raise.

    We really do not know where the next engagement is going to be, and having only a few places that we can train probably does not make sense for us in the long run. So we need to be creative about how we approach those issues.

    We know—I certainly know in San Diego, we do not have a lot of room left to expand for any areas. The chairman has raised some very legitimate issues about whether the environmental concerns and restraints have minimized the training areas. But if we're trying to create new areas today, we would find that very difficult in communities, because of urbanization, a whole host of issues. So we need to be more creative about that.

    I recognize, as well, that, for many communities, we have moved our populations out to the extent that most of the environmental lands that exist, that are protected, are on Federal land. That is a reality of today. And that is why we are so concerned here today and why we need to address these issues.
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    I think it is incumbent upon us and for the services to look at ways to transform their training. And we know that we have people in our communities that put their lives at risk for us every day. Certainly our firefighters and our law enforcement agencies do that all the time. They have found ways of simulating many of their training exercises, and perhaps there are more opportunities for us to do that in the military. Certainly not that should be the exclusive way, but I think there are some things, new techniques that we can look at that would be helpful.

    So one of the issues that I would ask you to look at is what we are doing to transform our training and leverage technology and whether or not we can expand further in the ways that we do that.

    And we also look—because I think people do not believe, actually, that the military always follows the existing environmental laws, and that is a big question that has been raised in San Diego.

    So if you can address that in this forum and also in the next one, I would certainly appreciate that.

    Again, I appreciate you all being here. I know that it is very important for us to look at the balance but to be concerned, as the Readiness subcommittee, for the ability of our forces to train and to provide the safety to one another as well as to our country. Thank you very much for being here today.

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    Mr. HEFLEY. Thank you very much.

    If there are no further statements, we have received written testimony from a few outside organizations that are interested in the proceedings. And unfortunately, due to time limitations, we are unable to include them all on the panel today. So I request unanimous consent that we include their written statements in the record. Without objection, so ordered.

    We will get to our panel now. We are fortunate to have with us today witnesses from the Secretary of Defense, a witness from each of the military services, as well as from three of the Federal environmental enforcement agencies.

    The first panel, we will hear from the Honorable Raymond DuBois, who is the Deputy Under Secretary of Defense for Installations and Environment; the Honorable Paul Mayberry, who is Deputy Under Secretary of Defense for Readiness; the Honorable Mario Fiori, Assistant Secretary of the Army for Installations and Environment; the Honorable H.T. Johnson, Assistant Secretary of the Navy for Installations and Environment; and the Honorable Nelson Gibbs, who is the Assistant Secretary of the Air Force for Installations, Environment and Logistics.

    Mr. DuBois, if you would like to begin.


    Mr. DUBOIS. Thank you, Mr. Chairman.

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    I think your opening remarks and those of your colleagues, Mr. Underwood, Chairman Hansen and Mrs. Davis, say in a very compelling fashion the kind of challenge that we face today. Perhaps we could reduce our opening statements because you have articulated it so well.

    Now, having said that, I do come here today not just as the Deputy Under Secretary of Defense for Installations and Environment, but I also appear before you as a veteran of the Vietnam War, where I spent 13 months of my life in the central highlands in 1968 and 1969. I can speak personally to the issues of realistic combat training and the necessity for it.

    Your request today for us to appear is a very timely one. We are dealing with an issue of critical importance to the successful defense of our Nation's vital interests both here and abroad. Indeed, it is critical to the defense of our homeland and our people, but an issue no less critical to our sons and daughters who have volunteered for that defense and who deserve the very best we can afford as we send them into harm's way, arguably the most difficult decision any President ever makes.

    But what makes that decision bearable for him, for you in Congress, for the Secretary of Defense? It is pure and simple: Have we done all that we can do to prepare our soldiers, sailors, airmen and Marines for battle in as realistic and complete a way as possible?

    We will discuss today some of the challenges which you all have articulated, that we face in terms of providing that realistic combat training—challenges borne of increasing urban density, spectrum competition, airspace management, and environmental constraints. And it is this last challenge that usually gets the most attention.
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    But if it is an environmental set of constraints irrespective of its basis—statutory, regulatory or administrative—that prevents unfettered access to land, sea and air space necessary for combat training, then let us thoughtfully, and with quantitative and qualitative evidence, address this issue with you and the American people.

    But I am not here principally to argue the case for possible legislative clarifications which would appropriately rebalance the environmental protection and military readiness equation.

    Others on this side of the table and you yourselves are far better prepared in some ways than I am and, most assuredly, will argue more compellingly than I can in that regard.

    However, I am here today to express to you and to the American people, on behalf of Secretary Rumsfeld and all of the men and women in uniform, the civilian employees of the Department of Defense and, yes, the 23-plus million Americans, veterans, who have served in uniform and fought our country's wars. I believe that all of us subscribe to the following principles.

    One, a healthy and productive environment is a fundamental component of our national power.

    Two, pollution is inherently wasteful of the limited resources available to our armed forces.
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    Three, today's DOD's environmental stewardship is arguably second to none, and is a reflection of the high ethical standards of America's fighting men and women.

    We continue to have a deep and abiding commitment, and we will operate a comprehensive and world-class environmental program. And the President's fiscal year 2003 budget request of over $4.1 billion in the DOD request for environmental programs is evidence of that.

    We take seriously the notion that part of the national defense mission is, in point of fact, to defend and preserve the natural environment entrusted to us. And our men and women take understandable pride in their environmental record—a record with documented examples of impressive management of critical habitats and endangered species.

    We also believe, however, the impacts on readiness must be considered when applying environmental regulations to military-unique training and testing activities. The imperative of realistic combat training and the stewardship of the environment, are they necessarily mutually exclusive? Not if the example of Fort Bragg and the Nature Conservancy Private Lands Initiative with the surrounding community in and around Fayetteville, North Carolina, is any test.

    Protecting lands that adjoin military reservations with conservation easements and other protective measures is a proposition that can provide increased protection to at-risk species while also reducing the management burden on military lands.

    This is a partnership that succeeds in creating and providing that balance we all have spoken to. There are many other examples of positive relationships with local and state governments that will be addressed, in some cases, by my colleagues.
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    But that is not enough, it seems to me. Those constructive examples of local initiatives will not and cannot address the larger framework of national laws and regulations, which have increasingly degraded our ability to train as we fight.

    Secretary Wolfowitz, the Deputy Secretary of Defense, recently created an inter-service, cross-service, interdisciplinary team not just to address these issues within the Department of Defense but, rather, to talk to the other agencies in the Federal Government who have equities in this arena.

    With the guidance of OMB and the Council of Economic Quality, we have had, and entered into, a series of serious discussions with Environmental Protection Agency (EPA), Interior, Fish and Wildlife Service, Commerce, National Oceanic and Atmospheric Administration (NOAA), some of who—those representatives will follow us and testify.

    But in the final analysis, we in the Defense Department recognize that, as a practical matter, the burden is on us to prove and justify and document that the lack of clarification imposes an ever-increasing burden on military training.

    We think we have done that, but our discussions continue. We do believe, however, that the failure to consider unique military activities when developing or enforcing regulations sometimes creates an imbalance between military readiness and military preparedness on the one hand and environmental protection on the other.

    Now, I will close by saying that this is a dialog that continues. It continues, and must continue with you and the Congress. We are going to try to address together clearly the challenges that you have articulated and I have tried to.
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    Some of the environmental laws and how they have been interpreted, I do not believe they have been interpreted necessarily as Congress originally intended or envisioned. Rebalancing the environmental protection in a military readiness is important.

    And in closing, sir, the 25 years ago that Secretary Rumsfeld and I served in the Pentagon, we did not confront this problem.

    The term ''encroachment'' was not in the defense lexicon 25 years ago. Perhaps we should have recognized the emerging problem then. But clearly, if we do not address it today, then our successors will surely hold us accountable.

    Thank you very much, Mr. Chairman.

    [The prepared statement of Mr. Dubois can be found in the Appendix on page ?.]

    Mr. HEFLEY. Thank you, Mr. DuBois.

    Mr. Mayberry?


    Mr. MAYBERRY. Thank you very much, Mr. Chairman and distinguished members of the subcommittee. I truly appreciate the special consideration that you have given in allowing my participation in this very important hearing today.
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    As current real-world events ably illustrate, our forces must be able to deploy to any place at any time to conduct a full spectrum of military operations, ranging from humanitarian relief to conduct full-scale combat actions, and to operate under the harshest of environmental conditions, ranging from scorching deserts to frigid mountaintops.

    To successfully, really achieve such high expectations, we must strictly adhere to the most fundamental of military readiness principles; and that is that we must train the way we intend to fight.

    Training our forces, as well as testing our weapon's systems under realistic combat conditions, is not a luxury; it is a commitment. It is a commitment to the American people.

    The military mission is unique. We carry out our training and our testing, not for personal gain nor for profit, but to ensure the readiness of our forces. The ability of the military to fight and win our nation's wars is tied directly to readiness resulting from realistic training. There is no substitute.

    Yet, our military readiness activities are being increasingly constrained by the cumulative effects of rigid compliance with an overly-broad interpretation of a wide array of environmental statutes and regulations.

    These impacts on readiness can be summarized in three broad categories.

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    First, the introduction of significant work-arounds. As the chairman's charts ably illustrated at Camp Pendleton, these amphibious exercises are now being impacted, involving the stoppage of the actual landing and attacks inward, as well as administrative movement of troops and equipment. There are flight restrictions at the Naval Air Station in Oceana, Nellis Air Force Base, the Goldwater Range, due to noise restrictions, urban development and even endangered species. We have canceled, as well as interrupted many training exercises, as well as major exercises—training events, to include live-fire drops at the Goldwater Range and even the use of San Clemente Island.

    Second, the loss of training and testing spaces and our capabilities are both actual, realized today, as well as into the future. Critical habitat designations are severe at the Marine Corps Air Station at Miramar, Camp Pendleton, as was noted earlier, the Naval Amphibious Base at Coronado, as well as Fort Hood, Texas.

    Frequency spectrum loss impacts severely our ability at our test ranges and their high-volume data requirements for transmission. And operations and training are even being threatened at previous BRAC realignment sites. Again, Miramar, Oceana, and the Naval Air Station at Lemoore.

    This is not only a current readiness problem, but we must loOkay to the future, as well.

    As Mr. Hansen said, just yesterday a Federal judge in District Court here in Washington ruled that the Navy was in violation of the Migratory Bird Treaty for unintentional takes associated with military training in the Mariana Islands. The judge appreciated the military need to train, but the law really gave him very little, if any, latitude to be able to permit the unintentional takes of these migratory birds. As you can see, the ruling will have tremendous implications for all military training facilities.
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    We, likewise, have similar concerns from munitions being classified as solid waste that potentially threaten training. We have ongoing lawsuits at Fort Richardson, Alaska, and also the Massachusetts Military Reservation. Environmental considerations will also be taken into account and potentially impact the beddown sites for many of our future weapon systems—the F–22, the Joint Strike Fighter and even the advanced amphibious assault vehicles.

    It has also delayed introduction of significant operational capabilities; for example, the low-frequency active sonar, a critical defense against diesel-electric submarines by many of our enemies.

    Let there be no doubt, our ability to train, as well as to test under realistic combat conditions is being severely impacted by encroachment, not only today but also affecting our future military capabilities.

    Stemming encroachment has now become a critical readiness issue.

    With that being said, our forces are ready and will remain so, but this readiness is resulting from a progressively increasing set of work-arounds, some of which are minor, others that require significant redesign and even interruption of our major exercises.

    The costs of these work-arounds continue to mount, not only in degraded training, but also in reduced training time, dollars associated with relocation of personnel, as well as equipment, increased personnel tempo, keeping our individuals away from their families, as well as additional maintenance on equipment.
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    The land, sea and air spaces that we use are irreplaceable national assets; and we well understand our responsibilities to be environmental stewards, to preserve these treasures. We owe our men and women also the best training and the most effective weapon systems that this country can provide before we send them into harm's way. And we seek your assistance in balancing these two vitally important national assets—military readiness and our environmental responsibilities.

    Again, I thank you, Mr. Chairman, and I look forward to addressing your questions.

    [The prepared statement of Mr. Mayberry can be found in the Appendix on page ?.]

    Mr. HEFLEY. Thank you, Mr. Mayberry.

    Mr. Fiori? And welcome back. I mean, 2 days in a row for you and Mr. Johnson, that is almost too much to ask. We appreciate it.


    Mr. FIORI. Thank you for having me again.

    Mr. Chairman, distinguished members of the committee, I appreciate this opportunity to present the Army's approach to protecting the environment and in meeting the significant challenges we face regarding encroachment.
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    The Army is a good steward of the environment. We are committed to protecting the health and safety of our soldiers, their families, our civilian work force and our neighbors in the local communities. In the Army, we endeavor to take the best possible care of the 16.5 million acres of land America entrusts to us.

    America also entrusts us with her most precious resource, her sons and daughters. And we are obligated to provide our soldiers with the most realistic training scenarios possible so that we ensure they return home to their families.

    Preserving military readiness is in the interest of all Americans and is inevitably tied to the Army's ability to train its troops and test its military systems. We take great pride in the strong relations we have with our neighbors, but recognize the inherent tension between the growing population around our military installations and our national defense's needs for larger training and maneuver areas.

    Most of our installations were established prior to World War II. Since that time, the land area required for training has grown sixfold due to modern tactics and weapon system requirements. We have been successful working with local communities establishing work-arounds to maintain our good-neighbor status, but this is becoming more and more difficult.

    In spite of all our efforts, encroachment is reducing effectiveness of military training. The effects of ever-increasing environmental restrictions limit geographic size, prevent realistic training, and do impact the morale in that more and more training is away from family.
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    As we transform the Army to a lighter, faster and more maneuverable force, many of the restrictions will have significant impact on our training.

    We have developed new initiatives, such as the Private Lands Initiative at Fort Bragg, North Carolina, that demonstrate our cooperation with the community and have potential for use at many facilities. The initiative is a partnership between the Army, other Federal and state agencies and the Nature Conservancy, designed to purchase land and conservation easements with the intent of protecting the red-cockaded woodpecker habitat, thus increasing usable training land at Fort Bragg.

    We recently signed an agreement with the government of Massachusetts which will allow the Army to continue using the Massachusetts Military Reservation for training. However, this is the first active training installation where we will be unable to conduct live-fire training, a very dangerous precedent.

    We are still facing challenges at the Makua Military Reservation, which is the only range facility on Oahu that accommodates company-level combined live-fire exercises.

    Though the recent settlement agreement allowed us to resume live-fire training, it limited us to 37 exercises over the next 3 years. As a result, the 25th Infantry Division that uses this facility will need to complete some of its company-level training requirements in continental U.S. at an annual cost of $6.6 million. Not only does this strain already tight training schedules and budgets, it also means our soldiers will be spending more time away from their families.
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    Also, in this case, the Army Reserve, Army National Guard, and the U.S. Marines will not have access to Makua for live-fire training.

    Another area of great concern, you covered, sir, concerning Fort Hood, where we have given up a tremendous amount of land and restricted training for the wildlife, endangered species. And I will not belabor that point. I will go further on to my statement.

    We also face training restrictions that include no digging, no tree or brush cutting, and no habitat destruction throughout the year on the entire corps and non-corps training area at Fort Hood.

    As I previously stated, we are using work-arounds at many of our installations to strike a balance between readiness and environmental stewardship. An example of a work-around is when our soldiers must use tape or ribbons to delineate fighting positions in lieu of digging entrenched fighting positions.

    Our mission is to fight and win our nation's wars. And to this end, we must provide our soldiers with tough, realistic, battle-focused training to ensure their readiness to accomplish this mission.

    We have been and will continue to be good stewards of the land, because it directly supports our ability to provide realistic training scenarios. Our concern is that present encroachment problems will continue to grow, even as the Army's transformation effort increases the battle space required.
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    Again, Mr. Chairman, we must provide our soldiers with tough, realistic, battle-focused training. This committee can assist us by developing, as you are today, a better understanding of the complexities and issues surrounding encroachment and by considering the potential impacts that rules and regulations have on our readiness.

    The Army appreciates your support, and we look forward to working with you, OSD, and our sister services and other agencies in developing a lasting solution to this problem.

    Thank you, sir.

    [The prepared statement of Mr. Fiori can be found in the Appendix on page ?.]

    Mr. HEFLEY. Thank you, Mr. Fiori.

    Mr. Johnson?


    Mr. JOHNSON. Mr. Chairman, members of the committee, we appreciate your beginning this dialog last year and continue today. I also appreciate your and Mr. Hansen's outlining of the challenges we face in the Naval and Marine Corps activity. Also appreciate Mr. Underwood and Ms. Davis talking about the need to work with the communities.
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    We have dialogs. We always need to increase those, and we appreciate your advice on that, sir.

    Our soldiers, sailors, airmen and Marines engaged in combat in Afghanistan join you in demanding and renewing the need to re-examine the proper balance between military readiness and environmental protection.

    Military readiness is a measure of how well-prepared we are to battle our nation's enemies when called upon by the President. Having had experience firsthand in combat, I can assure you there is no substitute for realistic training. We cannot predict what the next conflict will be, so we must train under different real-world conditions, including explosive ordnance.

    Weapons technology is very important, but only when the users have been trained to operate it. High-tech equipment plus highly trained operators bring combat success. We must ensure that our men and women are prepared to succeed when they first enter combat, not the second day. Realistic training before these initial days means fewer deaths to Americans and allied young men and women and fewer civilian casualties.

    The Department of Defense is a good steward and the ultimate protector of the environment. Department of Navy spends over $1.25 billion a year in environmental protection activities. We have done well in cleaning up our bases in the base closure, but we have also done equally well in cleaning up our active bases. We have been given numerous awards by the environmental groups; and we work closely with the regulators, communities, environmental groups who have mutual interest.
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    As Mr. Hansen mentioned, our Vice Chief of Naval Operations (CNO) and Assistant Commandant testified last week. They talked about work-arounds diminishing the training rigor and realism. And I certainly agree with General Williams' comment that the ultimate quality of life is bringing the troops home alive. My, our, all of our job is to support and help prepare our armed forces for their solemn responsibilities.

    My statement contains specific examples, some of which you have already highlighted, of concern to the Department of the Navy. Designation of critical habitat under the Endangered Species Act removes or severely limits our major training areas, as pointed out in the Camp Pendleton map. Ambiguous definitions of harassment under the Marine Mammal Protection Act alters and limits training and research efforts.

    As Mr. Hansen pointed out a moment ago, just a few days ago, the Migratory Bird Treaty Act, which was begun in 1918 to keep hunters from killing hundreds of ducks for meat and feathers, was applied to our servicemen in the Pacific Island, saying that each person who operates there is a criminal. I could take that one step further and say that at any base, that is true. I could take another step further and say, if you are driving home tonight and hit one of these birds, you are a criminal also.

    The judge, when he gave his initial comments, said he was concerned about the impact to military training; and he asked you to re-examine that law and see if it really was meant to apply to the military or just to save the ducks that were migrating through, I think, the Maryland area.

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    We certainly want to work hard to move forward in all areas. Striking that appropriate balance that both of you mentioned between military readiness and environmental protection is very complex; it involves the Department of Defense, the Administration, local communities, and certainly you. We are very pleased to work with you and look forward to better preparing our young men and women to defend our nation.

    Thank you, sir.

    [The prepared statement of Mr. Johnson can be found in the Appendix on page ?.]

    Mr. HEFLEY. Thank you very much.

    Mr. Gibbs?


    Mr. GIBBS. Thank you, Mr. Chairman, other members of the subcommittee.

    I appreciate the opportunity to appear before you today and discuss the Department of the Air Force's environmental program and the Air Force's concern over the issues of encroachment.
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    The Air Force has been a leader in environmental stewardship by focusing its principles of enhancing operational readiness, being a good neighbor, and judiciously using its resources, building its environment program around four key pillars: clean-up, compliance, pollution prevention, and conservation.

    For the sake of brevity, I will skip through the first three and focus my comments on conservation.

    As part of its conservation program, the Air Force currently manages over eight million acres of land containing 79 federally-listed endangered or threatened species. In many cases, habitats for these species would not exist if land had not been restricted for military use and then well-managed by military natural resources personnel.

    Ironically, it is precisely this conservation commitment that has begun to impact the Air Force's ability to carry out its primary mission. Many installations and test-and-training ranges occupy land, air, space and water areas needed for military operations and training. However, there is increasing pressure for other land use designations and limitations overlaid on land needed for military purposes.

    In the last few decades, the Air Force has worked hard and successfully to balance these competing demands from encroachment, but strains are beginning to show.

    Encroachment comes in many forms, including the expansion of laws and regulations, increased competition for use of the national airspace, demand for water, reallocation of radio frequency bands, and urban sprawl. Although environmental laws and regulations account for only part of the encroachment threat, they present some of the clearest examples of impacts on our military mission.
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    Let me share two examples. First, the Barry Goldwater Range in Arizona is required to employ four biologists who direct closure of live-target areas if they observe Sonoran pronghorn antelope within five kilometers of a target area. From 1999 to 2001, 30 percent of the scheduled live-drop missions had to be moved to another target area, and three percent had to be canceled because of the proximity of the pronghorn antelope.

    Second, as a condition of the endangered species consultation for the beddown of new flying operations at Holloman Air Force Base, the Air Force has been required to avoid known locations of four endangered bird species and to fund a 10-year research study, which, at conclusion, will have cost $35 million, relative to the impact on those four species.

    These two examples highlight the subtle impact of restrictions imposed on the Air Force's ability to effectively train. Although individually these restrictions are limited in scope, their cumulative impact is to reduce the options available to the operational commanders in achieving their goal of training the way we plan to fight.

    In conclusion, I thank the committee for allowing the Air Force to share its views on its successful environmental efforts as well as its concerns over the growing area of encroachment.

    The Air Force recognizes its obligation to balance its mission requirements with competing human and environmental needs. However, it also recognizes it has a unique responsibility to sustain the readiness of the world's premier air and space force. Achievement of the former should not be at the expense of the latter.
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    Thank you very much.

    [The prepared statement of Mr. Gibbs can be found in the Appendix on page ?.]

    Mr. HEFLEY. Thank you, Mr. Gibbs.

    I am going to turn to Mr. Underwood first. I have got some questions, but I want to give the committee a chance to ask.

    Mr. UNDERWOOD. Okay. Thank you, Mr. Chairman.

    Mr. DuBois, I know that in both the chairman's initial comments and my own, we referenced a couple of items. One is that there is some authority given to the Secretary of Defense to request exceptions, and this has not been exercised to our knowledge.

    And second, the issue of whether you are preparing any kind of proposed knowledge at OSD regarding encroachment issues, specifically on the environment.

    And could you respond to those briefly please?

    Mr. DUBOIS. Yes, Mr. Underwood. Thank you very much.

    The question that you all raised with respect to secretarial or Presidential waiver authority, I think it is important to recognize that with respect to the Endangered Species Act, at least, and the so-called Section 7J, it does say nothing about the President's paramount interest or emergencies of limited duration. You are correct in that regard.
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    It does let the Secretary of Defense direct the Endangered Species Committee to issue an exemption for agency action if he, the Secretary of Defense, finds it necessary for reasons of national security.

    Now, there are aspects of this provision which, in our judgment, limit its usefulness. For example, the Interior Department believes that it is possible that a 9-month administrative process must run its course before the Secretary of Defense can invoke Section 7J.

    If true, such a lengthy procedure would, as a practical matter, vitiate its usefulness not only for emergency situations but, obviously, for a host of daily readiness activities.

    DOD is looking for workable compromises for our daily readiness activities, not extraordinary procedures invoked by the President or the Secretary of Defense.

    One could, as a practical matter, also look at the notion that, if we had a situation that might bring this to an occasion where the secretary might request the so-called God Squad to address it, it would be too late. Our sons and daughters are already committed and deployed into harm's way. What happens—what had not happened prior to that?

    We are looking, as I indicated, to a compromise of workable daily solutions with respect to realistic combat training.

    Mr. UNDERWOOD. All right. Well, it is clear that, under the existing way we have been behaving, that the number of issues continues to go on. So is there some proposed legislative language that is coming out of OSD on this issue?
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    Mr. DUBOIS. As I indicated in my opening remarks, we have undertaken, over the past several months, a series of senior-level discussions with OMB, with the Council on Environmental Quality (CEQ), with EPA, with Fish and Wildlife Service, the Department of Interior, NOAA, Department of Commerce. We, the collective ''we'' in the executive branch, have not yet come to a conclusion as to what that legislative proposal ought to look like.

    As you well know, the Secretary of Defense has an obligation to recommend to the President, to OMB for formal coordination. What specifics we would look at in terms of legislative clarifications, we are not there yet. This, as I said, this is a dialog that continues.

    I also want to say this quite sincerely. Part of that dialog is going to be informed by conversations and discussions with you and Congress. I have had several of them to date. We have had several of them today, all of my colleagues and I, individually and collectively. And so we are not there yet, Mr. Underwood.

    Mr. UNDERWOOD. Well, I think many of us in the committee are already there. And so, you know, with all due respect, I think a number of us are ready to move on some of these items and so——

    Mr. DUBOIS. I will add one more thing. And I appreciate you for triggering this in my mind because it is a timing issue. We anticipate, underline the ''anticipate,'' providing to the Congress, in the secretary's submission for the authorization act, some aspects or some pertinent legislative clarification requests.
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    Now, the timing of that, as you know, is not entirely up to the secretary of defense. It is a dialog and a discussion, a deliberation between the secretary and the director of OMB.

    But my understanding is that the timing of those legislative proposals to the Congress, to this committee for your Title X action will be near the end of this month.

    Mr. UNDERWOOD. Okay.

    Mr. Johnson, on the issue of the FBM, I may be the only guy in the room who has been to FDM, so—

    Mr. JOHNSON. You know more about it than anyone else, sir.

    Mr. UNDERWOOD. Yes, I can speak to the FDM situation. It is a very nice island. It is very small. And it has—it is unfortunately also visited by a number of migratory bird species.

    The question is, what is the Navy going to do now—and I cannot understand why no movement was made to take this issue up in the district court of Guam at least or someplace nearby that would have, perhaps, looked at this a little bit differently.

    I know the Navy has worked very hard with the community. They have worked very hard with the community in the Northern Marianas, working with fisherman and also working with the Department of Natural Resources there, and also have taken a number of officials from Guam up there to make sure that we understand the whole dimension of it. So I think the Navy has been very out front on that.
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    So, what impact will this have on the Navy? And what is the Navy planning to do now? And why was not this attempted to be resolved in the district court of Guam?

    Mr. JOHNSON. Sir, we and also, I think it was the Chamber of Commerce at Guam tried very much—or the chamber tried to enter in as a co-defendant with us. We tried to move it to Guam but were refused. We did not get to set the tenure. I agree with you on Guam's approach, and we would like to have had it there.

    The judge has not yet figured out what the remedy should be. I was not present when he gave his ruling. But he will let us know in a few weeks. He is having a difficult time because he knows we need to train there, and he is bound by this law that was on the books for all these years that did not really apply to us. But in a court of law he found, against his own desire, I believe, that it was a law. And we have to find a way to work around it.

    The problem is, some would say, ''Just get a permit.'' There is no procedure to give permits. And then you would need a permit everyplace, perhaps driving down the road when the birds are migrating. So it becomes very, very difficult and impossible to live to the letter of the law.

    Mr. DUBOIS. Mr. Underwood, if I might just add?

    Mr. UNDERWOOD. Sure, Mr. DuBois.

    Mr. DUBOIS. My understanding was that the suit was filed here in the District and we tried to get it removed and were unsuccessful. I think the important thing, as Mr. Johnson mentioned, as the Chairman Hansen also mentioned, the judge will rule in the remedy in April, in late April. And it is highly possible that he could enjoin some or all DOD training activities on FDM.
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    Now, the judge did indicate—and I think this is very, very important for us and for this committee—that, because the statute left him little flexibility to accommodate national security concerns, that the Department of Defense should seek relief in Congress.

    Now, we plan to appeal that decision. And we are going to work with the Department of Interior to develop relief. But this decision highlights the need, it seems to me, for targeted adjustments to the environmental laws to better balance, as we have discussed, readiness and environmental protection.

    Mr. UNDERWOOD. Thank you.

    If I could just have one more question, Mr. Chairman.

    This is for the representatives of the services. Maybe Mr. Mayberry would like to take this on.

    You know, we are discussing readiness issues and the major concern that expresses the application of Endangered Species Act. Now we have the Migratory Bird Treaty, as in the case of FDM.

    What range of issues, or if you wanted to give it a percentage rating, I mean, how much of an impediment are other issues like community development, planned unit developments, frequency spectrum issues, airspace issues? Are those as severe or as restrictive as are issues pertaining to the Endangered Species Act?
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    Because it really calls upon this committee if no other committee is going to take the lead on that, because it is going to have to involve a number of Federal agencies. So how severe are those issues in comparison to the application of the Endangered Species Act?

    Yes, sir. Let's start with the Navy.

    Mr. JOHNSON. Sir, our top three are the Endangered Species Act, and the chairman's graph showed that very clearly at Fort Pendleton. The Sikes Act requires us to do integrated natural resources management plans. We like those. We have done it on all of our bases now. But the Endangered Species Act still will allow critical habitats. We believe the integrated natural resource plan is the way to go.

    The second area is marine mammals. I mentioned earlier the definition. And we and NOAA and Fisheries both agree on what the definition ought to be. It is a matter of getting that into the proper language.

    And the Migratory Bird Treaty Act is the third one there. And I think Mr. Hansen and all of you know that very well.

    Mr. GIBBS. Sir, from the point of view of the Air Force, two of the areas that are becoming increasingly important are the use of national airspace and the allocation of radio frequency bands.

    In both of these cases, there are processes by which the Air Force works with other regulatory agencies to try to balance the needs, the competing needs, as things get tighter and tighter. And to date, we have been pretty successful in doing that. Both sides, so to speak, have made compromises in getting there. But it is beginning to get tougher and tougher.
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    Mr. UNDERWOOD. Thank you.

    Mr. GIBBS. You are welcome.

    Mr. UNDERWOOD. Mr. Fiori?

    Mr. FIORI. An additional one that my colleagues have not mentioned that has concerned us—of concern—is how to apply the pollution laws to live firing. For example, the definitions relating to ammunition and what type of—or is it a waste, or is it a—or does it affect the Clean Water Act and so on. That is one that we need to address and I hope we do address.

    Mr. UNDERWOOD. Okay. Thank you.

    Mr. Mayberry?

    Mr. MAYBERRY. I would like to say that I think that many of these encroachment issues are local issues but have national implications, be it urban development and growth at some locations, the spectrum issues. I think you can see across the services just the differences in their overall missions, the way they train, the types of spaces that they use, that it is truly unique to the specific locations.

    But I think we have to address it not only from a current-day perspective in which we are actually realizing much impact on today's training, but also look toward the future in terms of some of the generalizations of these acts, as in the case of the Migratory Bird Treaty, being expanded to impact our future capabilities as well.
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    Mr. UNDERWOOD. Okay. Thank you.

    Thank you very much, Mr. Chairman.

    Mr. HEFLEY. You know, it absolutely boggles the mind this decision by the court against the Navy. No one—I would say this without fear of contradiction, although I do not know anyone who was here at that time, in 1918, had any imagination that this would ever be interpreted this way.

    In 1918, if you read the book ''Chesapeake''—you remember the stories of harvesting ducks on the Chesapeake Bay. It is one of the major fly ways north and south. And they would have shotguns that were too big to hold in your hand. They were mounted to boats. And they would sneak up at night, and they would shoot off those shotguns at night into a flock of sleeping ducks on the water, pick them up and take them to the restaurants in Baltimore.

    That is what the 1918 law was designed for. It was not designed for an accidental killing of one of those birds by an airplane or car.

    I live in an area where we have hit three deer in recent times in our car on the road. They are not endangered species. They could be. I could have hit a bear, or I could have hit a mountain lion. They are also in that area.

    But no one dreamed that an accident like that you could be fined for or they could come in and say you could not train, you could not use that road anymore, you could not use that car, you could not—it just boggles the mind. And we have to do something.
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    This is one of the things we absolutely have to correct. And the judge has asked us to correct it, so we have got to see that that happens.

    Mr. Hansen?

    Mr. HANSEN. Well, thank you, Mr. Chairman.

    I appreciate Mr. DuBois responding to the comments by Mr. Underwood regarding the national security impact statement we did last year. The one thing that was bad about that statement is the Senate, as they usually do, watered it down—no disrespect to our brethren on the other side who do so little.


    Anyway, carrying that on, Secretary Wolfowitz directed an internal review of encroachment problems and for legislative proposals on how to take care of those, as you may recall. And I assume, from what Mr. Underwood asked, that that is going forward. I guess that is a correct assumption, isn't it?

    Mr. DUBOIS. Yes, Mr. Hansen. The legislation, as I remember it, requires the Secretary of Defense to report to the President and the Congress within 6 months of the enactment of the legislation to comment on, essentially, the Section 312, formerly Section 312, National Security Impact Statement.

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    And Dr. Mayberry and I are actually in the process of drafting the secretary's report. We have not had an opportunity yet to discuss it with him, however.

    Mr. HANSEN. I appreciate that.

    You know, under current law on the Endangered Species Act, you can take into consideration economic factors. So Wal-Mart probably has more protection than you folks have.

    But it comes down to the idea, if you had your druthers, would not you like to be able to sit at the table also?

    If we are going to change this law—and Mr. Underwood pointed out some of it will be here, a lot of it will be over in Resources, but a group of us will be looking at some things.

    It just seems to make a lot of sense that you should have that same option. So I guess you would have to either do that by Executive Order or a change in legislation, and I think probably a change in legislation is the easiest way. Would you support that?

    Mr. DUBOIS. That is my understanding. As I indicated in my opening remarks, we kind of want a level playing field here. We think that is reasonable.

    Mr. HANSEN. You know, I authored a letter a long time ago to Secretary Rumsfeld; I think most of the committee signed it. And it basically got into what we have all talked about a little bit, and that was, why the secretary did not exert the right to, in effect, go to what is colloquially referred to as the ''god squad'' and have the right to tell them that, because of the security of America, that they could exempt it.
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    It does not say ''they may'' in the law; it says ''they shall'' exempt it. And we wondered why that has not been used.

    Now, I think it is kind of interesting, because I read the letter which was signed by Mr. Aldridge. He said this, an exemption would be considered, quote, in extreme circumstances and only when all other practicable alternatives have been exhausted, end of quote.

    My question comes down to, the Marine Corps is finding a situation, as pointed out by the chairman, at Pendleton where over 50 percent are limited. The SEALs at Coronado are prohibited from using over 80 percent of their land, and the list goes on and on.

    What does it take to be called an extreme consideration? I guess, maybe this is unfair because somebody at a higher pay grade than all of us may make that determination. But I was just curious if anyone there in this panel had an idea of what this extreme circumstance would be to do that?

    Because I think, over the years since this has been on the books since 1973, that possibly there has been a couple of those. But, you know, I could probably be wrong.

    Mr. DUBOIS. Chairman Hansen, the national security exemptions in existing laws are vitally important. There is no question about that. But they, in essence, address a different scenario.

    Now, you have raised an issue, and a very good one, about the situation particular and peculiar to Camp Pendleton, some would say an inextremist situation with respect to these issues.
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    I believe, and I will defer to my colleagues, that, from my standpoint, I will get back to the day-to-day issues, get back to how we look at training readiness over a longer period of time as opposed to a specific set of issues.

    Can we not work with you to address the broader implications that are, yes, pertinent to Pendleton; but if the President were to act Pendleton-specific it would not necessarily apply to our problems at other installations, test-and-training ranges in the United States?

    So there are aspects of this that are attractive, no question. But there are other aspects, in terms of what we are trying to and what this forum, this venue today is trying to address, that I think are, quite frankly, from the defense standpoint, more attractive—that is to say, perhaps, clarifications in statutes.

    Mr. HANSEN. Mr. Secretary, you may be exactly right. Politically speaking, I would think, if through the past years that the executive branch had instituted using this, it would have put a lot of emphasis on Congress to change it, change the law a long time ago. That is just a political comment.

    You know, years ago I was in the state legislature. And I noticed that what we call Hill Air Force Base in Davis County, where I live, encroachment was coming on the south approach. If you are approaching from the north to the south, you would see some encroachment.

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    To the north, it is not much of an encroachment because of the geography of the area—there is no way you can put homes and stuff. But to the south—and the prevailing winds normally come down that way, so much of the landing and takeoff from the south to north—to the south, I noticed that people were starting to plan subdivisions and churches and schools and all that kind of stuff that went in there.

    And that is the history of our military bases, is they go into an area that is relatively remote. And then, over a period of time, here comes the subdivision and here comes the Stop-and-Rob and here comes something else. Before long, the whole thing is loaded up with people.

    And now what do we do? Now you—out there we are taking these F–16s and A–10's and they are being worked on. And they are not exactly like a 757 come in at Salt Lake International, it is used all the time that way. So accidents do occur on those things.

    So I got together with a few people and we put $3 million out of the state budget and we put a right-of-way down that south entrance for quite a ways to prohibit anything more than cows and sheep and agriculture. No homes, no anything in that area. And I think that was a good move.

    And later on, when I was in Congress and I was speaking to the legislature, I encouraged them to do it even broader and further down; which they agreed to do.

    The thing that really bothered me is, we put so much money in these assets. I mean, you look at the three Air Logistics Centers (ALCs), at Tinker and Hill and Warner Robins, I mean, they are huge. And you put all that money in an asset like that, but we could not get one dime out of the military.
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    I mean, I came back here and talked to people as a state legislator, Speaker of the Utah House, I talked to people. I thought, you know, this is just as much of an encroachment, as I listened to you gentlemen here, as the endangered species or whatever it may be, and today this hearing is on encroachments. So we are sitting here saying, here is an encroachment that in effect could stop this. I remember Tinker having a huge problem on people coming in on final. Now, what do you do with that?

    I would think that if I was sitting over there in your building, I would give some real thought to the encroachments, and you Air Force folks I think are getting that. Every time I go to one of your bases, I always look around and drive around the thing just to see what is happening.

    Am I all wet on this, or don't you think we should expand this thinking a little bit?

    Mr. GIBBS. Yes, and we are looking at that. There are several current instances where land acquisition is being undertaken to aid in flight patterns. I believe you are aware of one that is occurring at Nellis Air Force Base, because of the load-out area for the live ordnance carried.

    And there is a plan for development, so we are in the process of attempting to develop a process whereby we can do land trades. We are working with the Bureau of Land Management, who has a fair amount of land in the State of Nevada, to trade a piece of their land to the developer to get the piece off the end of the runway. We have a backup process. In the 2002 budget, there was funding for purchasing a piece of that.
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    Yes, we are looking at that, and there are a couple of other instances.

    In response to the comment, and we do appreciate what you did at Hill, and you may have noticed that on Monday the voters in Oklahoma City voted a $50 million bond issue to acquire land off of the end of the Tinker runway to demolish 109 homes and clear an area out there.

    So there are a lot of people that are concerned about that problem and getting more and more concerned.

    Mr. HANSEN. I think the people are wise to do that.

    And thank you, Mr. Chairman. I appreciate it. But I think that is as much an encroachment as we have on this other issue. Thank you.

    Mr. HEFLEY. Thank you.

    Mr. Rodriguez?

    Mr. RODRIGUEZ. Thank you, Mr. Chairman.

    Let me ask you, I understand that the Department of Defense has submitted a proposal to OMB to modify all environmental laws which DOD is required to comply. And I was wondering if there is a copy of that, and also if you can make any comments regarding that.
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    And second, in addition to that, I also have a concern, since they have closed Kelly Air Force Base in San Antonio. And I know that there are some attempts of trying to get around and not having to do certain things, and I realize the importance of that. But I also want to see how that impacts, because I do have 40,000 homes that are impacted by it. And I wanted you to also, if you could, make some comments in that regard.

    Mr. DUBOIS. Yes, Mr. Rodriguez, I answered a little bit, I believe, your first question, perhaps while you were absent. We have not submitted any proposal to OMB with respect to legislation or statutory relief.

    As I indicated, Dr. Mayberry and myself and my colleagues have been in discussions with OMB and CEQ and Interior, Commerce and EPA on what makes most sense in terms of potential approaches—legislative, regulatory, administrative.

    We hope that by the time—by the end of this month, that we will be able to submit to this committee, with respect to Title X in the Defense Authorization Act, our views as to what statutory clarifications may be necessary.

    So at this time there is not, per se, a formal submission, or even an informal one for that matter. We are still working that issue. But as I indicated earlier—

    Mr. RODRIGUEZ. Thank you. And I apologize, you know, if I was not here during the hearing.

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    Mr. Gibbs, what about in reference to any discussions that they might be holding, as it applies to existing law in terms of their implications to certain, you know, violations or environmental impacts that are now, for example, at San Antonio, at those 40,000 homes?

    Mr. GIBBS. If your question is in response to Kelly Air Force Base, what the current situation at Kelly is, the Air Force, one, had begun its cleanup activities on base. There has been ongoing discussions to move the cleanup off base.

    Agreement was reached recently with the city as to the cleanup plan. It is currently at the state of Texas for approval. We expect to get that very shortly. And we will be doing the installation.

    There is a request in the budget request this year which covers the first phase of the water cleanup off base at Kelly. We expect to start that one as soon as we get the approval.

    Mr. RODRIGUEZ. But can I have your assurance that that will continue, bar any other discussions that might be taking place regarding any other possibilities or any other options that are occurring?

    Mr. GIBBS. Sir, I am not aware of any other discussions taking place. It is the Air Force's intention to go ahead with the plan; and we reached agreement with San Antonio, assuming we get the approval, and we believe we will, from the state of Texas, and that the funding is authorized and appropriated this year. We will move forward.
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    Mr. RODRIGUEZ. On the issue of encroachment, let me ask you, are there any—and I apologize if it was talked about before or not—but are there any grants or any resources to help communities that we have funded in the past, regarding the issue of encroachment?

    Mr. DUBOIS. Yes, Mr. Rodriguez.

    Under our legacy appropriation, the legacy program appropriation, we have worked with communities to grant conservation easements. And under specific appropriations—as Mr. Gibbs addressed and as is the case with the Army in Fort Irwin—we have used specific appropriated dollars to acquire land to prevent future encroachment or to expand critical habitat outside the defense land as opposed to——

    Mr. RODRIGUEZ. That money has come from where?

    Mr. DUBOIS. DOD appropriations.

    Mr. RODRIGUEZ. From DOD. And so, in terms of the—have you had any grants to communities?

    Mr. DUBOIS. Yes, the Office of Economic Adjustment has made some grants to communities in this regard, not large ones but smaller ones, to explore what makes most sense both from their recreational purposes, wildlife management purposes, as well as encroachment with respect to military installations.
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    Chairman Hansen, I think, was going down a particular path which, if I understand it correctly, suggesting there might be an appropriate authorization for the Defense Department to do, I think, just what you are asking for. And I believe the Secretary of Defense would find it attractive in that regard.

    Mr. RODRIGUEZ. Thank you very much, and thank you for being here.

    Mr. HEFLEY. Mr. Weldon?

    Mr. WELDON. Thank you, Mr. Chairman.

    And thank you all for coming in. I apologize for being late and apologize for not being able to stay. I have to go for a meeting at 4:00, but I do want to make a statement.

    And I want to thank you, Mr. Chairman, for your leadership on this issue, and Mr. Hansen as well.

    I think I am in a unique position on this committee. I have supported every major environmental initiative since I have been in Congress. I was a co-sponsor of the original Endangered Species Act, the Marine Mammal Protection Act. I have supported Clean Air/Clean Water legislation, coastal zone management. I am the only Republican on the Migratory Bird Commission with six other Members, working closely with John Dingell, on the North American Wetlands Conservation Commission. I represent the U.S. in two national ocean forums, Global Legislators for a Balanced Environment and the Advisory Council on Protecting the Seas.
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    I have actively supported, in opposition to my party and the senator on the other side, the ratification. I have been out front on full funding for refuge issues, and have tirelessly advocated for more monies for our refuges.

    But I can tell you, there is a problem, folks. And I am speaking to the environmental community as much as I am the Pentagon. Things are out of control.

    I want protection of our endangered species. I want protection of our wetlands. I want a balance in what we do as a society. But things are very much out of control and out of balance.

    As the former Chairman of the Readiness Subcommittee last year, I took my colleagues on a trip around the country to 24 military bases in 15 states in 4 days, to see the problems, not to go sit in the dining room of the base commander and have him tell what he wanted us to hear, but to be go out and see the problems. And the problems are real.

    There are problems with not enough spare parts. There are problems with not enough equipment. There are problems with housing, where there is raw sewage under the barracks due to a lack of appropriate funding. But there are also problems with encroachment.

    In Fort Riley, Kansas, we saw a significant amount of military dollars being spent to keep old structures up because the State Historical Commission said that the Pentagon could not take them down. They had no relative value. There were scores of them. But because the state, in this case, superseded the Federal Government, the Pentagon had to go to the State Historical Commission—I do not even know who they are—to get permission to tear down sites that were not relevant or needed for the continued operation of our military. Now, I am a strong supporter of historic preservation, but we have gone too far.
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    The interpretation of some of these laws is being used by some people to accomplish things that were not the original intent of the Congress. And I can say that because I was one of the ones who worked for those passages of those bills, that got other members of my conference, even though my party disagreed with it, to support those positions.

    Well, now all of a sudden, you are causing problems, because we are seeing some endangered species becoming more important than the men and women whose lives depend on their training.

    And I can tell you; I had a conversation with Sherry Boehlert, you do not have a harder worker on environmental issues in the Congress than Sherry Boehlert on our side of the aisle. Sherry Boehlert has severe problems with what is happening. And he feels as I do: There has got to be a meeting of the minds here, or you are going to see the Congress take action.

    That is why last year I took action on a National Security Impact Statement. How can we equate a snail darter at a higher level than a Marine who is being trained to save his life over in Afghanistan right now? We are not against the snail darters, but we are certainly not against Marines either.

    And what amazes me in California, and I absolutely—for any of you in California here, I hope you take offense at this, because that is what it is intended to do.


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    We flew by helicopter—you know, California, the ''great environmentally sensitive state''; we took a helicopter from Camp Pendleton down to Miramar. That is over 100 miles, a couple 100 miles. When we left Camp Pendleton, which is pristine even when they do the training, all we saw along the coastline all the way down to Miramar was city after city, no open space, no parklands, no preserved open area, housing after housing, big condos on the beaches.

    So because California and the state of California's government and the local towns along the coastline did not see fit to do the right thing and set aside proper space for endangered species or to protect open areas, it forced all of these animals and all of these insects and other endangered life onto the military base, because the only open area in the entire coastline of California was on military installations.

    Now, these same California representatives come in here and these same California groups and say, ''We are out to protect the endangered species.'' Well, cut me a break. Where have you been for the last 50 years? Where have you been on the planning and the zoning? I used to be a local mayor and a county commissioner. Where were you when these towns were overbuilding? Where were you when these regulations were allowing these condos to be built along the ocean front, taking away all the parklands?

    It offends me dramatically, especially when I see a chart where the bulk of the endangered species in this country are now on military installations. I do not think the endangered species naturally picked military sites to go to,

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    because back when these military installations were built, it was all open space. But because of improper land use and states that have no idea of what it takes to properly preserve the environment—and I include my own state in that, by the way—now, all of a sudden, the military has got to bear the brunt of this.

    And more importantly than the Pentagon, it is the soldiers, it is the sons and daughters of my constituents who are risking their lives in Afghanistan right now because we tell them they cannot train. We tell them, when they go across a certain area they have got to get on buses and then get off the bus on the other side of the training area.

    Folks, that is unacceptable. As a green Republican, as an advocate for environmental legislation, as someone who has supported all of the opposition to the riders that my party tried to stick on the appropriation bills in past years, I am telling you this is not going to stand.

    What is happening in some cases, by a very few groups, they are using environmental laws for a deeper agenda. If groups are against the military, let them come out and say that, but do not think you are going to let us sit back and have you use the courts to interpret a bill that was designed by the Members who supported that for one thing to accomplish your long-term objective as somehow limiting or shutting down our military capability, because that is not going to happen.

    Now, that is the debate this year. We have got to find the middle ground. I say that as someone who has been there on behalf of those environmental concerns.
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    And I am going to tell you, Mr. Chairman, if we do not find a balance here, whether it is in the ability of states' historic commissions to cause us to spend more money when it is not necessary—and I am not against tearing down very historic structures—if we are going to allow TV networks to encroach on the bandwidth that the military needs to properly perform—and that is what TV stations are doing all across America—and if we are going to allow some radical groups to use laws that were written and then to be interpreted not for the original intent, but for some other purpose, this Congress has got to act.

    I urge common sense here. I urge the two sides to come together and find the middle ground. None of us want to desecrate the endangered species in this country. None of us want to destroy wetlands or marine mammals or migratory birds. But there has got to be a balance here; it is not one or the other.

    When I chaired the R&D subcommittee for defense for 6 years, we used environmental money to help the Russians clean up their nuclear waste, we used environmental money from the Office of Naval Research to understand the ocean ecosystem, we used environmental money from the Office of Naval Research to build a global sensing program to understand the marine environment in the oceans. This does not have to be where one side opposes the other. And I can tell you, as one Member of Congress, I am not going to sit here and let it happen.

    This is a very important hearing. I encourage those in the room, because you are all out there, I can see you, you better come to your senses. And with the military, we better work to achieve a balance that has the military sensitive to the environment, but not to the extent where we, in fact, are destroying the ability to train our troops.
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    And for those local towns, how can I have sympathy for a town that allows zoning ordinances to have homes built right up to a base where this base has been here 50 years, and then, after the homes are sold, have the people in those homes go to complain to the zoning board that there is too much noise? I mean, cut me a break. You know that that base was there, you know, what is going on there. As a local town official, you have a responsibility to have the area around that base be environmentally sensitive to what is going on there.

    So, Mr. Chairman, you can tell I feel very strongly about this issue, and I feel strongly, as a strong supporter of our military and equally strong supporter of our environment, we have got to find a compromise here or you are going to see this Congress take action. And I will lead the effort on the Republican side to bring in those green Republicans, to bring some common sense back to the way that we interpret some of these laws, all of which I was a cosponsor and supporter of.

    Thank you.

    Mr. HEFLEY. Thank you, Mr. Weldon. And when you make up your mind where you stand on this, we will give you some more time.


    Mr. Kirk?

    Mr. KIRK. Thank you, Mr. Chairman. And thank you for having me on team Readiness.
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    First of all, I want to say to Ray, thank you. We will be helping you out on another very difficult issue. I actually live on a BRAC base and hope to—you go with the flexibility you need for Secretary Rumsfeld to do that for our military.

    And also to H.T., thank you, because you did something very important to the environment in my community by providing the funds necessary to clean up a Nike battery there, right next to a local school. And that was a major commitment to the northern Illinois environment.

    I want to touch on two subjects. One is, from my experience in the Navy, we relished the opportunity to train overseas. In my particular experience, the only chance that we got in VAQ209 for low-level overland flights was in Turkey. And I think this is a growing trend for our military, that the restrictions that we suffer from are making us actually do the more effective training in other countries. And I wonder if you could touch on that for a moment, anyone on the—

    Mr. DUBOIS. Yes, Mr. Kirk, if I might. Overseas training accessibility for our military is extremely important. In fact, in the next 6 weeks I will go to Europe twice, once for a Central Asia, CENTCOM (Central Command)-sponsored—jointly sponsored with my office—environmental encroachment and training conference; and then subsequently for the European Command.

    I have spoken both to General Franks with respect to CENTCOM and General Ralston with respect to European Command. The issues that we are facing in terms of overseas training for our overseas troops, of which 25 percent of all our active duty forces are outside of the United States, is as important there as it is here.
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    The European Union is considering some regulations which we find very problematic. And I intend to go to Brussels in May and have discussions with the European Commission, as well as our NATO military folks, as well as our NATO Ambassador. This is extremely important.

    Mr. KIRK. I am very glad to hear you say that because, frankly, the workups that we did, for example at Incirlik, were the day before we flew the OPERATION NORTHERN WATCH (ONW) missions. And so to make sure that we had those overseas training opportunities was vital, because that was literally on the eve of battle for us. And some of what I have heard about what the European Union (EU) is talking about could have a significant impact on our military capability.

    As we look at this issue, other countries face it as well. And I am wondering if, for the record, the department could give us a simple chart looking at where the U.S. military is present—Japan, U.K., Germany, Turkey, Saudi—and give the committee some clue as to what the environmental restrictions are by those countries on military training as compared to the United States.

    [The information referred to can be found in the Appendix.]

    Mr. DUBOIS. We will certainly take that for the record, Mr. Kirk.

    I also wanted to point out that the GAO is in the midst of an investigation with respect to the causes and effects of encroachment on DOD training overseas. My understanding is that they will release their draft report in the next several weeks. It is—as a practical manner, it does identify constraints. It assesses their impacts. It explores alternatives. And my understanding is they focused on five countries—Germany, Italy, United Kingdom, Korea and Japan—countries that you mentioned. And obviously, those have our two theater commands, European Command (EUCOM) and Pacific Command (PACOM), are dealing with this.
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    Mr. KIRK. Thank you.

    And I am wondering, H.T., if you could talk about—I do not know if you have ever seen a loggerhead shrike, but I wonder if you could talk about—my understanding is when the Navy first got involved in this program, we were down to 13 loggerhead shrikes. And I wonder if you could talk about what has happened since the Navy first got involved.

    Mr. JOHNSON. We have been very good stewards. Our sailors, Marines, certainly soldiers and airmen, take great pride in the environment. And they moved that 13 to some 160 shrikes, as I recall—I will get the exact number for the record. But we have been very good stewards. These young men go out, find the nests, protect them and so forth.

    Each time they do that, they reduce their training areas. So the better they do, the more difficult it is to train. We try to work with the agencies to—as we increase the population, to allow us to have unintentional takes. No take is ever intentional by the Department of Defense, so we are trying to find a balance by helping build the species, at the same time have the opportunity to train.

    If I might add something to Mr. DuBois' comment, we find that overseas countries are following our lead not only in our politics and so forth, but also on our environmental approaches. And they also are restricting their activities. We, and I personally, have had very good training in foreign scenarios. As you well know, some of those come to our country to train because of constraints, primarily in the air.

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    [The information referred to can be found in the Appendix.]

    Mr. KIRK. Thank you.

    I think it is important to note that we have 10 times the number of loggerhead shrikes than prior to when the Navy took over. It is a very good record.

    And if you could get back to us on some of these overseas training opportunities, in many ways, they are the most valuable because they happen just prior to going into action.

    Thank you, Mr. Chairman.

    Mr. HEFLEY. Thank you, Mr. Kirk.

    And it is time that this panel be excused. But let me just say that we need your suggestions. You mentioned, Mr. DuBois, that maybe by the end of the month. We are going to be marking up here in about a month I understand. And we need your suggestions about how to solve these problems.

    And we need—it seems to me the time is right now for you to begin to come in and discuss with our staff where you are on it—and I do not think those discussions have taken place as yet—so that we can begin to plan. We do not want this thing handed to us as we go to markup. This has to be worked, as you know. You are having to work it on your side now. We have to work it on our side. So we need some time to do that or else we drift on for another year and you still struggle with the problems. We can make some progress this year, and I want to make some progress this year, if we work together on it. So I would encourage you to get that to us as soon as you can.
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    Mr. DUBOIS. Yes, Mr. Chairman.

    Mr. HEFLEY. Thank you very much all of you for being here.

    Mr. DUBOIS. Thank you.

    Mr. HEFLEY. We will take a 2-minute recess while we get our second panel in place.


    Mr. HEFLEY. The committee will come back to order. Our second panel will be made up of Mr. Craig Manson, Assistant Secretary for Fish, Wildlife and Parks for the U.S. Department of Interior; Mr. Steven Shimberg, Deputy Associate Administrator for Encroachment and Compliance Assurance, U.S. Environmental Protection Agency; and Mr. William Hogarth, Assistant Administrator for Fisheries, National Marine Fishery Service, the National Oceanic and Atmospheric Administration.

    We will start with Mr. Manson, I believe.

    Let me remind you again that we are going to be on the 5-minute clock. You can summarize your statement for us. We will put your statement in its entirety into the record. And these little lights at each side tell you when to go and when to stop.

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    So with that, Mr. Manson, we will turn it over to you.


    Mr. MANSON. Thank you, Mr. Chairman. I appreciate the opportunity to be here and address the committee about the role of the Department of the Interior in this important subject.

    I want to say first that Secretary Norton understands the unique nature of the duties and missions of the military and the need to train to be to be able and ready to fight.

    On a personal note, I have seen these issues from both perspectives, having served on active duty in the Air Force, in the Air Force Reserve and the Air National Guard for nearly 30 years. And many times I have been called upon to advise commanders on the compliance and application of environmental laws in a way that would not degrade readiness. And having lost classmates in both training and operational scenarios, I have a deep appreciation for the necessity to train as we fight.

    From my military experience and as a state regulator—former state regulator in California, I can say that the Department of Defense has been an exemplary steward of the nation's natural resources. And that opinion is shared by Secretary Norton and throughout the Department of the Interior.

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    The Fish and Wildlife Service, one of the bureaus for which I have responsibility, strives to strike a balance in meeting its responsibilities under various national resources laws without impacting the military's ability to train.

    I think the Fish and Wildlife Service has done a commendable job at that effort, but I also acknowledge that more can be done. And in my written testimony, I address both our successes and our challenges.

    Much has been said about the Endangered Species Act (ESA), and under the ESA the key issue for the military is Section VII, which requires Federal agencies to consult with the Fish and Wildlife Service to ensure that their actions are not likely to jeopardize the continued existence of threatened or endangered species or result in the adverse modification of critical habitat for such species.

    The ESA requires the Fish and Wildlife Service to determine whether the designation of critical habitat for listed species is prudent and determinable. And much has already been said about the critical habitat situation.

    As far as the Department of Defense is concerned, about 300 listed species occur on DOD-managed lands, and access limitations due to security considerations, the need for buffer zones and good military stewardship have resulted in some of the finest remaining habitat being on military lands.

    The Fish and Wildlife Service has striven to establish good relationships with DOD that enable the military to carry out its missions. And in my written testimony I give a number of examples of these partnerships. And some have been alluded to already.
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    Even with these successes, we acknowledge have been some challenges in resolving endangered species conservation issues. And some of those were referred to by the military witnesses who appeared earlier.

    Another issue is the Migratory Bird Treaty Act. And the case involving FDM was referred to earlier. I would say about that that we also, at the Department of Interior, are concerned about that case. Issues under the Migratory Bird Treaty Act are not limited to DOD. And as a result of a 1999 Executive Order, we have been developing memoranda of understanding with DOD and other various Federal agencies to try and address those issues.

    Also mentioned earlier was the Marine Mammal Protection Act for which the Department of the Interior and the Department of Commerce shares responsibilities. And the issue of the definition of harassment, as enacted in the 1994 amendments, is certainly a problem for the Navy, as Assistant Secretary Johnson indicated.

    Over the last several years, the Fish and Wildlife Service has worked diligently with the Navy, the National Marine Fisheries Service, the Marine Mammal Commission and Alaska natives to develop proposals to clarify areas of the existing law under the Marine Mammal Protection Act. And during this process, revisions to the definition of harassment have been considered to address the concerns expressed by the Navy.

    That and other proposals related to the Marine Mammal Protection Act are currently under review by the Administration.

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    In closing, Mr. Chairman, I believe that both the Interior Department and the Department of Defense have acted cooperatively to implement natural resource conservation laws. And the Interior Department is prepared to explore and craft creative solutions to balance our conservation mandates with military readiness. We look forward to continuing to work with the Department of Defense on this vitally important matter.

    That concludes my testimony, and I will certainly answer any questions at the appropriate time.

    [The prepared statement of Mr. Manson can be found in the Appendix on page ?.]

    Mr. HEFLEY. Thank you, Mr. Manson.

    Mr. Shimberg?


    Mr. SHIMBERG. Thank you, Mr. Chairman and Mr. Hanson. I want to thank you for inviting me to speak with you today on behalf of the Environmental Protection Agency about the connection between military readiness, national security and the protection of human health and the environment.

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    The Department of Defense and this subcommittee have raised an important issue. I want to assure this committee that EPA is working closely with the department to analyze the issue and to develop solutions to identified problems. In my testimony today, I will try to briefly explain how and why our pollution control laws apply to Federal facilities, including the military.

    It was mentioned earlier, both in your statements and by the prior panel, that there are various exemptions in some of our—in most of our existing pollution control laws. And so I will not continue on that point other than to note that it is an important issue for us to explore the opportunities and the limits of those provisions.

    It is also worth noting that in many cases, our pollution control laws have actually promoted readiness while saving taxpayer dollars. My written statement includes several examples of this. Wherever possible, the EPA works cooperatively with military bases to find expeditious, affordable solutions to their environmental problems. And in many cases, the military is very receptive and they are very good stewards and we have a great partnership.

    EPA does provide DOD with a broad array of compliance assistance tools and programs. When EPA determines that a pollution control violation has occurred, in determining next steps, the agency considers several factors, including the nature of the violation, its potential for harm and the violator's history of compliance.

    There was discussion earlier about MMR, the Massachusetts Military Reservation in Cape Cod, and some of the concerns about that. I think it is important for us to keep in mind that MMR is the only enforcement action in EPA history that has ever led to even a temporary shutdown of an active training facility.
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    MMR is located over a sole source aquifer that provides drinking water for hundreds of thousands of Cape Cod residents. Parts of the Cape Cod aquifer have been contaminated by fuel spills and other past practices at MMR. In addition, a broad range of explosives and chemical compounds have been detected in the ground water.

    Studies estimate that 43 to 60 billion gallons of drinking water have already been contaminated by pollution from MMR. Eleven large plumes of contaminated ground water have been identified causing the shutdown of public and private water supply systems.

    In May 1997, EPA ordered the suspension of most military training at MMR's live artillery range. It was the first and only time in our history that military training activities have been halted under a pollution control law that EPA administers.

    That order includes explicit provisions allowing training to resume if DOD can demonstrate that national security and readiness needs justify suspension of the order.

    To date, the military has not invoked those provisions. EPA subsequently ordered the National Guard to clean up the ground water and soil contaminated by activities at MMR.

    Unexploded ordnance, or UXO, represents one of EPA's primary environmental concerns at MMR and similar sites. EPA's practice is to defer to DOD experts on all questions regarding explosive safety at active ranges. Indeed, under current EPA practice, we typically address UXO concerns only at closed ranges or those ranges, such as MMR, where there are off-range impacts.
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    Another point I wanted to raise, it was mentioned by some members of the panel, is the important role of the states in implementation, administering our environmental pollution control laws. They are full partners with EPA in our pollution control laws. They play a lead role pursuant to their delegated powers, and the states are on the front lines of assuring that DOD complies with the environmental laws. The states conduct the vast majority of compliance inspections at Federal facilities, they issue compliance orders when violations are found and assess penalties where sovereign immunity has been waived.

    In response to state and EPA concerns, Congress passed the Federal Facilities Compliance Act in 1992, waiving the Federal Government's sovereign immunity under the Resource Conservation and Recovery Act (RCRA), the law that regulates hazardous waste. That decision led to significant improvement in Federal facility compliance with RCRA. Experience teaches us that where the agency's penalty authority over Federal agencies is clear and unambiguous, environment compliance is improved and disputes over the nature and extent of EPA's authority are diminished.

    In conclusion, Mr. Chairman, I want to emphasize, there is no debate whether we need to act to protect just the environment or just national security. We need to do both. As you have alluded to and other Members have suggested, no one is suggesting that to accomplish this we need to weaken existing pollution control laws. We do not. Instead, we need to build on the successes of the past. We should always be looking at how we can make our partnerships more effective, our regulatory structure more responsive and our innovations more creative.

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    Together, as a team, working with Congress and with DOD, we will meet our challenges by finding new ways of protecting the environment and public health while ensuring that America's armed forces are able to train to carry out the national security mission.

    Thank you.

    [The prepared statement of Mr. Shimberg can be found in the Appendix on page ?.]

    Mr. HEFLEY. Thank you.

    Mr. Hogarth?


    Mr. HOGARTH. Thank you, Mr. Chairman and members of the subcommittee. I appreciate having the opportunity to testify today regarding environmental and encroachment issues as they apply to the military.

    I am Bill Hogarth, the Assistant Administrator for Fisheries at the National Oceanic and Atmospheric Administration.

    We are well aware in that agency of the training that is necessary. We have had enforcement involved in homeland security since September the 11th. And we realize, while this is not fighting overseas, it still is a matter of training that is necessary to protect our country.
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    And although my written testimony covers topics relative to NOAA as a whole, my oral testimony today will focus primary on the interactions between the National Marine Fisheries Service and the Department of Defense. However, I am accompanied today by staff from the National Ocean Service, and we will be happy to provide written response for questions that I cannot answer today.

    The National Marine Fisheries Service (NMFS) has a strategic plan that contains three goals. One is to rebuild and maintain sustainable fisheries. Two, promote the recovery of protected species. And three, protect and maintain the health of our coastal marine habitats.

    Our role in environmental stewardship is defined legislatively through three laws primarily: the Marine Mammal Protection Act (MMPA), the Endangered Species Act, and the Magnuson-Stevens Fishery Conservation and Management Act, although we have approximately 100 other laws that we have to be in compliance with.

    NOAA and NMFS understand the strong connection between the environment and our national security. We strive to continue the solid working relationship between our agency and the Department of Defense. We see this cooperative relationship as one that will provide mutual benefit. It not only allows NOAA to work with the Department of Defense to perform environmental mandates in an efficient and responsive manner, but also allows DOD to make a significant contribution to the preservation of our nation's living marine resources through a combination of conservation efforts and scientific research.

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    NOAA is responsible for the conservation and management of over 140 marine mammal stocks under the MMPA. Over the last few years, NOAA and the Navy have been strengthening our working relationship regarding marine mammals.

    These efforts have included, one, we have established an Environmental Coordinating Group which is focused on the integration of the agency process under the ESA and the MMPA. Second, I have been meeting with Mr. H.T. Johnson, the Assistant Secretary of the Navy for Installations and Environment, on ways to expand our partnership in achieving our distinct yet complementary missions.

    I am working with the Navy to identify ways for them to conduct shock trials used to test ship designs in ways that will result in the least impact to marine mammals. We have a NOAA-wide effort to ensure the—Marine Mammal and Endangered Species Act take consultations on the SURTASS LFA sonar system are being carried out effectively and efficiently to address the responsibilities of both the Navy and NOAA.

    We are also working with the Navy to identify ways we can cooperatively fund research. Examples of that joint research include NMFS and Office of Naval Research (ONR) joint sponsorship of research on ambient noise, the effects of explosions on marine mammals, the use of passive acoustics to conduct marine mammal surveys.

    In addition, we are now working with the Navy and the Marine Mammal Commission to convene a symposium on reducing shipping noise through ship design changes.

    More efficient permitting without compromising our mandate to conserve marine resources would be facilitated by discussions of activities with our Department of Defense counterparts in advance. One of the largest problems we face regarding NOAA permitting activities with the Navy has been a lack of sufficient time to work through the issues. Advanced planning by agencies applying for permits under the MMPA is critical in providing NOAA with ample time to complete our responsibilities.
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    One way to achieve this goal is through programmatic consultations which provide a way to address a number of related activities in advance.

    In conclusion, NOAA understands the importance of cooperating with the Department of Defense to allow our military to train and to provide national defense. We also take our mandate to protect our nation's marine resources seriously.

    However, we do not view these multiple mandates as conflicted. By working closely with the Department of Defense and combining each of our respective strengths, we have a better chance to achieve much greater conservation goals together.

    I am committed to a continued investment by NOAA to work with the Navy and other resource management agents to improve our ability to protect the marine environment in the context of military operation and national security consideration.

    Mr. Chairman, thank you for this opportunity and I will be happy to answer any questions.

    [The prepared statement of Mr. Hogarth can be found in the Appendix on page ?.]

    Mr. HEFLEY. Thank you.

    Mr. Hansen?
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    Mr. HANSEN. Well, I thank you, Mr. Chairman.

    Dr. Hogarth was before our Resources Committee yesterday regarding the issue in Klamath Falls, where about 100 farmers went under because of a question of whether or not and how much water should be in that lake.

    But Dr. Hogarth, I will not bring that up again here.


    Mr. HEFLEY. He does not think it is fair that he has to face you 2 days in a row.

    Mr. HANSEN. I do not either. I agree with him.

    You know, when the Department of Defense proposes an action that could significantly impact the environment, it has to publicly analyze the impacts and consult with your agency for impacts within your expertise. Why shouldn't you be required to formally ask DOD about impacts that your actions might have on national defense and then publicly document your response?

    Do want to answer that, Mr. Shimberg?

    Mr. SHIMBERG. Sure. Congressman, when EPA proposes any regulation or any rulemaking, the Department of Defense, as part of the interagency process, does have an opportunity to comment. And then, of course, during the public process to the extent they file any comments, we are required by law to respond to those.
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    Mr. HANSEN. But they are not—you are not required by law to publish their response are you?

    Mr. SHIMBERG. To publish their comments and to publish our response to their comments.

    Mr. HANSEN. Let me just ask you this, this is, kind of, a philosophical thing. But how many—how much additional risk should our troops have to take in order to comply with environmental laws?

    Mr. SHIMBERG. I am sorry, how much what, sir?

    Mr. HANSEN. How much more risk should they take to comply with environmental laws?

    Mr. SHIMBERG. I am not aware of any additional risk to comply with the law, sir. The laws in many situations actually end up protecting the men and women on the base; both on the base and then the people who live around the base as well. So their impacts on many cases are from not complying with the laws. There are some situations where not complying with the law does not produce an impact. In those cases, we do not pursue enforcement.

    Mr. HANSEN. After hearing the first panel and what the chairman has said, and he demonstrated that on Pendleton, and we could see how—what a reduction that we were getting out of the training, which has been rampant in this committee and in the Resource Committee. Apparently, we are not sending them out as trained as we have because of environmental laws.
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    I think that question is pretty straightforward; that they are gradually eroding the training of these people with environmental laws and by endangered species laws.

    Well, I guess you say, ''Well, Congress mandates these things; you tell us what to do.''

    Mr. SHIMBERG. Well, actually I was going to—

    Mr. HANSEN. That is how I would have answered if I was sitting in your seat.

    Mr. SHIMBERG. Well, I was going to take a better dodge than that, sir, is that fortunately EPA handles the pollution control laws and does not have the Endangered Species Act.

    Mr. HANSEN. Well, Judge, I will not ask you that. I will go easy on that one.

    But Mr. Shimberg, let me ask you this. You have noted the EPA did not shut down the Vieques range. Isn't it true, however, that one of the issues the Navy faces at Vieques is whether it can obtain a new Clean Water Act permit for the discharge of ordnance to waters? I understand that it has operated on a permit that has been administratively continued for over 16 years because Puerto Rico will not provide the water quality certification necessary for a new permit. How would EPA handle this situation if such a certification is not forthcoming?
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    Mr. SHIMBERG. Well, that is the situation that we face at the moment, sir. And the way we have handled it is to continue the old permit administratively while we continue the process of trying to get the new permit in place.

    Mr. HANSEN. Would you support the issue of a Presidential exemption?

    Mr. SHIMBERG. Sir, I would have to wait and see the—obviously, if the President makes a determination like that I would support it.

    Mr. HANSEN. That is over your pay grade.

    Mr. SHIMBERG. That is absolutely.

    Mr. HANSEN. All right.

    Mr. Shimberg, let me ask you this. You note that the Massachusetts Military Reservation is the only facility the EPA has shut down through an enforcement action. But isn't EPA notoriously slow in addressing problems faced by the military? And I may ask why did EPA halt the Navy's program for testing new weapons and training crews using target vessels for over 5 years?

    Mr. SHIMBERG. Sir, I am not familiar with that example that you cited. I would be happy to get back to you for the record on that.
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    In terms of slowness for responding, I am not aware of specific complaints about that as well. We do the best we can to work with the military to solve problems in a cooperative fashion.

    When that does not happen, we then have to through the enforcement route.

    Mr. HANSEN. But you would take the time to answer that question wouldn't you, and let us know if we were to ask you to?

    Mr. SHIMBERG. Yes.

    Mr. HANSEN. We would like to know why that 5-year delay has been there and holding the Navy up. I cannot see a reason for it. Possibly there is a good one, but I would like to know what it is.

    Now the thing that really gets to us in the Resource Committee and this committee is something called overflights over military ranges. Now we have got a dozen—or 38 here in the States? Got them scattered all over the place of where we have military overflights.

    And I am always hearing, ''Well, golly we cannot handle that. We cannot fly under 2,000 feet or something.''

    Now is there any, any, any analysis that provides any evidence of any harm to any species on the ground over overflights? Can you provide or any of you provide this committee a single scientific study that establishes that overflights below 500 feet or 1,000 feet or 2,000 feet, or any altitude currently harms the species on the ground.
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    Mr. MANSON. I will take that, Mr. Hansen. I am not aware—and I will certainly look for you, but I am not aware of any specific studies as to particular species with respect to the issue of overflights. There is a concern, however, on the part of the Fish and Wildlife Service that in certain situations overflights may have the effect of interfering with breeding or feeding areas of endangered species.

    I am certain that we have that under review, and I will certainly be glad to look into that and give you more information about that.

    Mr. HANSEN. Judge, if I may say so I have heard that same response basically many, many times, but I have never got my hands on it where somebody has specifically said, ''The slimy slug cannot breed in the Provo River because it is got overflights coming down the thing.'' Or whatever it may be.

    Out at the Utah Test and Training Range, which is one of the largest—zero to 58,000 feet, I mean they have got their wheels in the grass half of the time or else they are up there killing on another at 40,000 feet.

    And we have checked that out. I have had three universities look at it. I have checked with all of the ranchers in that area to see if it bothered domestic animals, to see if it—I have checked with Utah Fish and Wildlife to see it bothers coyotes, foxes, whatever it may be. No one can tell me it really happens.

    But it is just one of those sacrosanct things around here that when you say overflights, everyone just gasps and says, ''Oh, we could not possibly allow overflights. It may interfere with those habits.'' And I do not blame you for saying that because I understand that is the standard line and has been from every organization that I have ever talked to.
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    But I do not know, maybe you have, Mr. Chairman. Maybe it is come to you in Colorado. But we have not been able to see that.

    Dr. Hogart—if I may have one more—

    Mr. HEFLEY. Sure.

    Mr. HANSEN [continuing].—has expressed concern over the vagueness of the definition of harassment under the Marine Mammal Protection Act. Does NOAA agree with the recommendations of the National Research Council that the definition of harassment under the MMPA should focus on significant disruptions to behavior critical to survival and reproduction?

    Mr. HOGARTH. Mr. Chairman, we all were looking at reviewing the definition of harassment. It is a problem for everybody we regulate. It is confusing. And we have worked with the U.S. Fish and Wildlife, the Department of Defense and others to come up with a new definition. That definition is being routed for approval now by the agencies.

    So, yes, sir, we think it needs to be changed.

    Mr. HANSEN. I would just like to end if I may, Mr. Chairman, and just say, look no one really wants to beat up on anybody on this thing. And I know you folks get that impression sometimes. But basically it comes down to the idea we are doing what everybody is trying to say; is there a balance? And around here sometimes, the pendulum goes way one way and Congress has got to bring it back. And then it goes the other way.
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    When I was a college student, boy, the idea was save the environment. We were all marching—save the environment and that kind of stuff and all these coming along. And I think some of those organizations have now become extremely extreme. And I have found that many of them that I thought I used to support when I was in my 20's, all I see them do is raise money and file lawsuits. And they keep the trial attorneys in big business because that is about all I have seen.

    I asked the group, a very prominent environmentalist yesterday, ''Can you name me one thing that your organization has done to help the environment? Name one thing.'' And I am still waiting for an answer. And I chair the Committee on Resources. I have been on that committee for almost 22 years now. And I am still waiting for answer on that.

    I really compliment you people. I know you have got parameters to work in and it gets very difficult from time to time, but we would really like some questions because we are serious about coming up with legislation that creates a better balance that we have got now. And in this committee, especially for the military, which I personally in my own mind, feel is out of balance. And I thank you for the time, Mr. Chairman.

    Mr. HEFLEY. Thank you, Mr. Chairman.

    Were you all here when I was describing this Camp Pendelton map? You were here, weren't you? Let me ask you, is that reasonable to you that we would have that kind of overlays of environmental laws that restrict a training base to that kind of extent?

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    Look at the little dark areas. You can take four steps here but then you got to turn left.

    And you cannot go across here, but we will bus you across. You cannot dig a foxhole because you might dig into some place where an Indian camped and fished and I suspect he did on the beach there. So learn to dig your foxholes when you get in battle.

    Is this too extreme? Have we gone too far do you think? Any of you.

    Mr. MANSON. Let me approach that first, Mr. Chairman. First let me say that we are, at least in the Department of the Interior, really are not in any position to judge or evaluate or disagree with the assessment of the Department of Defense with respect to impacts on training. They are the experts in that regard.

    I would say further, however, that we recognize the challenges that are placed before the military, and frankly, my bureaus, in trying to enforce environmental law with that appropriate balance. And we have, as Mr. DuBois said earlier, begun a dialog within the Administration to figure out the best way to approach these issues. And I can tell you it is a very serious dialog and a very committed one within the Administration.

    I will give you an—by way of example, I was sworn in 22 days ago and in that time I have had five conversation with the Department of Defense about these issues. And we are working seriously toward a collaborative solution within the Administration; and as Mr. DuBois indicated, that may include a number of approaches.

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    So I think I can tell you that this Administration is very much committed to solving the issues and making sure that there is a balance between the enforcement of our natural resources laws and the need for military training to ensure readiness.

    Mr. HOGARTH. I think we all want to make sure that we have military training and a strong military. We work very hard with the Navy. And primarily our law, MMPA, is the one that impacts, you know, with the Navy. Endangered Species Act is basically with U.S. Fish and Wildlife from the ground standpoint.

    And we have a couple issues. I think the harassment definition is definitely one that we all realize is troublesome to a lot of us. But we have had the new issue with noise. See we had the stranding of a large number of beaked whales in the Bahamas. And the Navy came forward with us. We did a study to look at them.

    We have never stopped an exercise that the Navy has had. We may have delayed them to not get the permit out, but they have never—we have never prevented them from carrying out the training that they need to do. They have always done it. It may have been a little later as we worked through some of the issues.

    And right now, the noise issue is one that we are working very closely with the Navy, the acoustics and noise. Because I think there is a lot of things that we do not know of the impact of noise on some of the marine mammals. And that could be a very serious question.

    But they are working with us and we are trying to work through it. Both of us are funding studies. Both of us are looking at what is going on. So that is one that is going to take some, I think a lot of work over the next few years. From a marine mammal standpoint, that is probably the number one issue—acoustics and noise in the marine environment.
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    But other than that, you know, we have not—you know, we have worked with them, but we have not prevented them or told them they could not do any, or stopped any of the training. It has always been carried out.

    Mr. SHIMBERG. Mr. Chairman, I will associate myself with the comments of Judge Manson. I thought he stated very well the nature of the problem, the seriousness with which we take it and the process we have in place to find workable solutions that we can work with you and others on to make sure that, to the extent these laws are creating difficulty in readiness training, that we solve that problem.

    Mr. HEFLEY. Well, I appreciate your comments that we are looking for workable solution. But how in the world did we get ourselves in this kind of a mess? I mean, how could this ever happen?

    Do you think it is right for Fish and Wildlife or Environmental Protection or any agency to arbitrarily and unilaterally—maybe I should say unilaterally instead of arbitrarily because I am sure you would say, ''We do not do it arbitrarily''—declare critical habitat on a military installation?

    Mr. MANSON. Well, what happens with the designation of critical habitat, it does go out for public comment, the proposed designation of critical habitat. The military is involved in commenting on the proposal for critical habitat.

    And there are a couple of good news stories about critical habitat and military installations. The first is, for example, in the issue—in the matter concerning Camp Pendleton, as was pointed out during the earlier panel, the original proposal was to designate nearly 10 times as much critical habitat as ended up being designated. And so through a process of examination, involving public comment and consultation with the military, the original proposal for critical habitat at Camp Pendleton was significantly reduced.
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    Now the other thing that a good news story, in terms of critical habitat on military installations, has to do with the Sikes Act amendments of 1997 in which the concept alluded to by members of the first panel, the Integrated Natural Resource Management Plans (INRM) were developed. And I think you heard Assistant Secretary Johnson of the Navy say that he likes the so-called INRMs because that is a collaborative process between the military installation and the Fish and Wildlife Service.

    And under the statute, we are able to say that where there is an INRM, an Integrated Natural Resources Management Plan, in place, then those areas of that installation are not in need of special management consideration and, therefore, can be excluded from critical habitat designations.

    So those are a couple of good news stories in terms of critical habitat designations that are going on right now.

    Mr. HEFLEY. So if we had that we could maybe correct some of this kind of problem even at Pendleton today? Is that what you are saying?

    Mr. MANSON. If I understand your question, yes, sir, I think that is what I am saying.

    Mr. HEFLEY. Judge, were you—you are familiar with that migratory water fowl decision that was made yesterday or the day before?

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    Mr. MANSON. Yes. We had several of our lawyers who attended that hearing. And I got briefed on that immediately after the hearing. And I would say that we are concerned about that as well. Because, as I said, issues concerning the Migratory Bird Treaty Act are not limited to DOD. There are a number of other Federal agencies that potentially could run afoul of the Migratory Bird Treaty Act by their routine and ongoing activities.

    And we have had this process in place to develop these MOUs (Memoranda of Understanding) with these other Federal agencies. And frankly, I think that case calls into question to some extent our ability to continue to do that. We are going to have to look at that closely—that decision closely to see if that is, in fact, the case.

    It was clear to me from my lawyer's reports of that hearing that the court did struggle with the decision. And the judge did indicate that he felt that legislation would be appropriate in that circumstance. Now he set another hearing for April 30 at which he will consider the appropriate remedies. And we continue to watch that matter very closely.

    Mr. HEFLEY. In our wildest imagination from your experience as a judge, could you imagine that in 1918 anybody who supported that bill would have dreamed that it would be interpreted this way?

    Mr. MANSON. Well, I think it is fair to say that I doubt if in 1918 anybody had in mind this particular interpretation. But as you know, there is a theory that the law is a living thing and evolves over time to take into account various circumstances. Now I am not a judge anymore, so I am not to going to say whether I agree or disagree with that theory, but that is a theory.
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    Mr. HEFLEY. Well, it is a theory and we fought with that theory for a long time; judges becoming legislators because they want to make the law live.

    But Mr. Hansen goes out to the golf course and he tees off and he hits a Canadian goose—and you know Canadian geese are very prominent on our golf courses across America. In fact, they stay the winter even in this part of the country instead of going ahead and migrating because it is such a good habitat for them.

    But under the law, as this is interpreted, he could be charged and fined for taking a migratory water fowl without a permit.

    Is that not correct?

    Mr. MANSON. That would seem to be the implication of the judge's decision.

    Mr. HEFLEY. And so you run into it with an airplane and you could be charged. I mean, it just—it boggles the mind. It is so ridiculous. I agree with what Curt Weldon said in his very dramatic statement. It is just unbelievable. And this is the thing that gives problems for all of us who want to support an environmental agenda, but then we have these idiotic interpretations of that agenda.

    Let me ask you, Mr. Shimberg, you mentioned that the Massachusetts Military Range—what is your impression of the current status of that cleanup situation?
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    Mr. SHIMBERG. My understanding of that, sir, is that the cleanup is proceeding; that the services working with the State of Massachusetts were able to come to agreement on how to manage the situation in the future. The State of Massachusetts passed legislation to set up a commission and a process and to set aside some areas. And we are proceeding with the cleanup, and could reach a point where training begins again there, but I do not know of a timetable for that.

    Mr. HEFLEY. Well, we of course do not like active ranges shut down. But at the same time, if you—if we really can document that the water table is being negatively affected, that is an environmental issue that needs to be dealt with. There is no question about that.

    I mean, that is not a silly issue. That is not a goose issue. This is a real issue, because once you get that water table contaminated, it is very difficult to clean it up. Not impossible probably, but very difficult to clean it up.

    We have heard numerous examples from the military services where they have done such a good job—and you all indicated that, that they have done such a good job of increasing the populations of endangered species in some of their areas that species have spread to additional areas which then have to be closed for training.

    Has the Fish and Wildlife Service or NOAA established any procedures for determining when a species has been adequately recovered on military land, an endangered species, so that you could maybe change the rules on how you manage that land? Is there anything so that we can say, ''Yippee, we have succeeded and that is done and we will go on with business?''
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    Mr. MANSON. We do have processes in place to make those determinations to ultimately determine if a species has been recovered to the point where it could be delisted or special management considerations are no longer needed. Those processes, in fact, do exist.

    And I cannot tell you right now, because I do not have the information, as to whether or not we have ever taken those types of actions with respect to species that are found primarily on military installations. But I can look into that and certainly give you an answer to that for the record.

    Mr. HEFLEY. Would it be appropriate to—in the reenactment of the Endangered Species Act—to require scientific analysis of when we will have success, when we can say this species, now I know we take species off the list. But as far as I know—and Mr. Hansen you can correct me on this, but as far as I know, we do not have any scientific measurement going in saying that the Preble's jumping mouse, when you get so many of them, is no longer endangered and, therefore, it can come off the list so that we have a goal to shoot for.

    Would it be appropriate to establish those goals at the outset, going in? We almost wiped out the bald eagles, but when we get so many bald eagles, they will be recovered and we can take them off the list?

    Yes, Judge Hogarth?

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    Mr. HOGARTH. I am not sure it is quite as simple as saying that. But I think the Endangered Species Act does require us to set up recovery, you know, teams and to look at recovery. But to say strictly a number, for example, in turtles which are endangered and we deal with the Navy even on turtles. We have nesting sites, number of nesting, number of nesting sites, plus the number population to work together.

    So it would be very difficult, I think, for Congress to come through with every day just to say a number, for example. And there may be a combination of things that could enable us to take it off the list rather than just a number. So I think it would be very complicated for you to do it.

    But I think the ESA should require that a recovery plan be done, and it does require that. And we should have those, and we bring in experts and update them on a regular basis.

    Mr. HEFLEY. Are we using enough science in these determinations rather than emotion?

    Mr. HOGARTH. Well, we try to use science because we go outside and bring scientists from the state, scientists from universities and all to work with us. It is not just an internal thing.

    And then once we do a recovery plan we usually have it peer reviewed outside by people outside of us. And a lot of times it may go to the Marine Mammal Commission or other groups that are set up to look at our proposal of what we propose.
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    Mr. HANSEN. Will you yield on that one point?

    Mr. HEFLEY. Yes, sure.

    Mr. HANSEN. Let me point out, if I may, Mr. Chairman, that regarding the act and getting something off, it really does not—that or regulation really has not been refined.

    This history of it has not been red hot.

    For example, the American alligator, you go to court to get it off. And we should not have to go to court to get something off. You go down and talk to the folks in Miami, and they have got more alligators than we have in the history of this area.

    And second, you get in the idea of, take the Colorado squaw fish; in one place it is endangered and in one place it is a predator. It is endangered in the Colorado River and it is a predator in the Colombia River.

    How did that happen? Well, I have talked to some of these guys from Fish and Wildlife and they say, ''Well, it is a different fish.'' Explain the difference to me. And they said something about an additional spine in the dorsal fin or something. And as far as I am concerned, it is basically the same fish.

    You get down to the desert tortoise. Why is it that the desert tortoise in one area is not endangered but—say, like in Washington County, Utah, but it is endangered in the Mojave? And so when I bring the people in and say ''Why is it—why do we do this when we got it very healthy in one area?'' And now we are putting it endangered and doing an Habitat Conservation Plan (HCP) that costs the American taxpayers millions and millions of dollars. Then in the Mojave, it has a respiratory disease. I cannot understand the logic in that.
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    And the list goes on and on. In fact, in my office we have compiled little lists of all of the horror stories on endangered species. And I think in my 42 years as an elected official, I have never found an act that has more horror stories than Endangered Species.

    And part of it is listing, part of it delisting and part of it is the lack of science that the chairman talked about.

    Thank you for yielding.

    Mr. HEFLEY. Well, I would say that too. The Preble's jumping mouse lives down on the creek from my ranch and is endangered; and the radical environmentalists have used that extensively, as have the Fish and Wildlife Service, to shut things down, down there as much as they can.

    I live up just the hill—up the hill a little ways next to the mountains. And I use DeCon to get rid of the mice out of my barn. Now they are not the exact same mouse, but as I understand it, the jumping mouse is a subspecies that you have to kill and analyze before you know there is a difference in those two mice. Now I am not sure that that is the case. But that is what I understand that it is very difficult to identify.

    What do you think about the way we have decided not only to protect the species, but every subspecies of everything that comes along? Does that make sense?

    Mr. MANSON. Well, I am not a taxonomist or biologist, so I cannot speak to the fine graduations that may exist between various species. I would say that the statute and the regulations require that. And even from a layperson's point of view, in the appropriate circumstances, there is sense to a certain degree of protection down the taxonomic scale. Maybe Dr. Hogarth could tell you more about that than I can.
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    Mr. HOGARTH. The act does not really give us the leeway to separate. And you know, we talked about is it endangered? And you look at the numbers and its habitat and you know, of its chance of extinction. And that is what it is really based on. What are the chances of these species going extinct? And then once that is determined that they are endangered or threatened, then you look at rebuilding and how soon can you rebuild and to what levels do you rebuild?

    The Endangered Species Act—I do not know if I should say this on record, but I have said it everywhere else I have been—is one of the toughest laws I have ever dealt with. It is a very tough law. But I think we—it is one that we try to work with. Secretary Evans and Secretary Norton have set up a group of us to look, to work together with to try to coordinate better. And I think that that is working; that process is working. And we are all very—we are all trying to balance these. We do have some animals that are close to going to extinct and the law is to not let them go extinct.

    Mr. HEFLEY. Well, it is a very well meaning law. And I think—I was not here when it was passed, but I would have probably voted for it if I had been here, because the idea of wanting to save bald eagles and grizzly bears and wolves and those kind of things certainly is appealing and it is well meaning. It is just that the interpretations that have been put on it over the years raises a lot of questions.

    Let me ask you this. The northern right whales, which is endangered species, migrate from New England down to the coast of Florida during the calving season. And they are out there near Jacksonville and Kings Bay, Georgia; and during the calving season the Navy must modify their speed through the habitat and also modify the way they do offshore training.
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    Dr. Hogarth, do you know what percentage of maritime traffic through the calving area is that of the Navy?

    Mr. HOGARTH. The shipping—the ships strikes—it is one of the big problems with the recovery of the right whales: fishing gear and ship strikes. And we have just contracted outside to get a report prepared on the ship strikes and we are working now with the Coast Guard on what we can do with it. But we have several ship strikes a year.

    And we all—it is a very tough issue for us, because the lobster industry in New England—about 70,000 lobster men involved, we are changing their gear. Right now we are having areas that are closed seasonally. We are having areas that we fly; and when three right whales land in a certain area, we will close that area until the whales move out, all of the gear has to come out.

    We worked with the Navy on this, and the Navy has been very cooperative on the regulations and what we have asked them to do.

    But we are down to around 300 right whales that are left. And it is one that is just very tough to recover. But we spend a lot of time.

    Mr. HEFLEY. We want to save them. There is no question about that.

    Mr. HOGARTH. Yes.
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    Mr. HEFLEY. That makes more sense than the mouse to me—we want to save them.

    But it is my understanding that commercial vehicles are not restricted to the same kind of restrictions that the Navy is; that in other words, commercial vessels do not have to follow that speed limit and so forth.

    Mr. HOGARTH. We have to—the Navy has voluntarily done this. We have to go through the Coast Guard and through another whole process to regulate ship travel. We do not have the authority to regulate, you know, ship traffic. And we are all working with the Coast Guard on that issue right now. And that is why we had the report done to try to give us some additional information that we could utilize as we negotiated with the Coast Guard.

    Yes, sir.

    Mr. HEFLEY. Do you have any idea—well, my figures are that about 10 percent of the traffic is Navy traffic and the rest of it is commercial. So we are trying to do something. I am glad the Navy is trying to do something there. But do you have any idea how many marine mammals are injured each year by commercial or recreational vessels that you do not regulate?

    Mr. HOGARTH. We have some numbers. I could get you that. I do not have that off of the top of my head. I know that it was estimated last year in Florida alone, there were about 300 turtles that were hit by boat traffic. I do not know how many manatees.
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    We have some estimates that I would be glad to provide that.

    Mr. HEFLEY. Well, I am glad that all of you indicated that you recognize this as a problem, the encroachment issues, and that you are willing to work with us on that.

    If you have any suggestions, I wish you would get them to us so that—we do not want this to be an adversarial proceeding. We do not want the military fighting the Fish and Wildlife and NOAA and so forth, the Environmental Protection Agency. We want it to be a proceeding that works together to a common—to two common goals: to provide the training areas we need, as you mentioned Mr. Shimberg, and also to provide for the environmental protection that makes sense and is reasonable.

    I got to tell you, for us to protect mud holes at Pendleton because of a microscopic shrimp of some kind that so far as I can tell does not even fit into the food chain or anything anywhere—I do not know exactly what contribution it makes. I know there are those who would say everything makes a contribution. And I suppose it does. Although when I am being eaten up by mosquitoes on a camping trip, Jim, I do not know what that contribution is.


    But you know, I think some of those things border on the ridiculous. And I wish we could—if you have got suggestions to help us come to grips with this, we would very much appreciate that.
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    We received communications from some environmental groups over this hearing. They did not want us to have this hearing. They wanted us to put this hearing off. We would not let them testify in the hearing. And the fact of the matter is, they were never asked to testify in the hearing, but it gave them good publicity. And as Jim said, it helped them raise money because, gosh, that awful Armed Services Committee is going to radically change the Environmental Protection Act.

    That is not what we have in mind. We have in mind working out procedures that work for both goals.

    And we appreciate very much you being here today to help us toward that end.

    Thank you very much.

    The committee stands adjourned.

    [Whereupon, at 4:45 p.m., the subcommittee was adjourned.]